Andre Timothy Jackson v. the State of Texas

Affirmed and Memorandum Opinion filed April 11, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00602-CR

ANDRE TIMOTHY JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 1635620

MEMORANDUM OPINION

A jury found appellant Andre Timothy Jackson guilty of murder. Tex. Penal
Code Ann. § 19.02. The trial court, at appellant’s election, assessed punishment of
life imprisonment. Tex. Penal Code Ann. § 12.31(b).1 In four issues, appellant

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Although the reporter’s record reflects that the trial court stated the jury found appellant
guilty and assessed punishment, it is silent regarding pronouncement of sentence in open court.
Neither the State or appellant addressed this at trial or on appeal. The space on the OCA standard
judgment form for “Date Sentence Imposed” states “5/4/2022,” and the court’s docket states,
“AT 5:20PM THE JUDGE SENTENCED THE DEFENDANT TO LIFE IN PRISON
STARTING 05/04/2022.”
argues: (1) the evidence was legally insufficient to support his conviction; and the
trial court erred by denying his (2) motion to suppress; (3) request to strike the
testimony of the State’s DNA expert; and (4) requested jury instructions.

I. BACKGROUND

In 2016, eleven-year-old complainant, Josue Flores, was attacked while he
walked home from school in north Houston and stabbed 18 times. Complainant
died of his injuries. The attack happened in the middle of day in a neighborhood
full of people with no apparent motive.

Several witnesses saw the attack and several more saw the attacker flee the
scene of the attack. However, the witnesses’ descriptions of the attacker differed
significantly. Initially, a suspect was arrested based on a photographic-array
identification. However, the charges against that individual were dropped after his
alibi was confirmed. The Houston Police Department (HPD) then gathered security
footage from area homes and businesses. Although there is no video footage of the
attack or any person following complainant before the attack, the police were able
to identify a suspect who was first seen in videos just two blocks north of where
the attack occurred. HPD publicized a photograph of the suspect, which led the
police to appellant.

Appellant was living in a shared room at a Salvation Army center. HPD
secured a warrant for appellant’s arrest and arrested him at the Salvation Army
residence. HPD then sought and received a search warrant for his room.

DNA testing of appellant’s jacket was inconclusive; and the clothing worn
by appellant offered no evidence of appellant’s commission of murder. In 2017,
the State dropped its charges against appellant.

In 2019, complainant’s murder was considered a cold case. HPD’s cold case

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division decided to retest the DNA from appellant’s jacket and sent the DNA
sample to an out-of-state laboratory with newer and more sensitive DNA
technology. As a result of that testing, complainant’s DNA was found in the
sample taken from the jacket. The sample was not from blood, but what is known
as “touch” DNA, a small amount of skin cells left after contact. The State filed new
charges and appellant was tried and convicted in 2022.

II. ANALYSIS

A. Sufficiency of the evidence

In issue one, appellant challenges the sufficiency of the evidence supporting
his conviction. A person commits the offense of murder if he (1) intentionally or
knowingly causes the death of an individual or (2) intends to cause serious bodily
injury and commits an act clearly dangerous to human life that causes the death of
an individual. Tex. Penal Code Ann. § 19.02. Here, appellant argues the evidence
was not legally sufficient to establish beyond a reasonable doubt that he was the
person who murdered complainant.

1. Standard of review

The Due Process Clause of the Fourteenth Amendment requires that a
conviction be supported by legally-sufficient evidence. Braughton v. State, 569
S.W.3d 592, 607 (Tex. Crim. App. 2018); see also Jackson v. Virginia, 443 U.S.
307, 315–16 (1979); U.S. CONST. XIV, § 1. In assessing the sufficiency of the
evidence to support a criminal conviction, “we consider all the evidence in the
light most favorable to the verdict and determine whether, based on that evidence
and reasonable inferences therefrom, a rational juror could have found the essential
elements of the crime beyond a reasonable doubt.” Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); see also Brooks v.

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State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). We measure the evidence by
the elements of the offense as defined by the hypothetically-correct jury charge.
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

We may not reevaluate the weight and credibility of the evidence and
substitute our judgment for that of the jury. Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). We defer to the jury’s resolution of any conflicting
inferences from the evidence and presume that it resolved such conflicts in favor of
the judgment. Jackson, 443 U.S. at 326; Whatley v. State, 445 S.W.3d 159, 166
(Tex. Crim. App. 2014).

2. “Touch” DNA

Appellant argues that the only evidence connecting him to the crime is the
fact that both the individual who killed complainant and appellant were wearing a
green jacket and that “touch” DNA evidence from complainant was found on
appellant’s jacket. Citing problems with “touch” DNA, appellant argues that the
evidence adduced at trial was legally insufficient to support his conviction.

None of the eyewitnesses identified appellant as the attacker. Although, the
State does cite to testimony from two witnesses who saw the attack on complainant
and testified that a Black man with a green jacket ran away. The State further cites
another two witnesses who lived nearby and described seeing a Black man with a
green jacket jog or run by their house on his path away from the scene. The
testimony of these witnesses from the neighborhood provides evidence of the path
taken by the attacker after he stabbed complainant. This evidence connects the
video footage of appellant two blocks from the murder geographically and in time
to the murder of complainant.

There is no question—as appellant argues—that the “touch” DNA evidence

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was critical to his conviction. “Touch DNA is based on Locard’s Principle that
when a person touches something the person’s epithelial, or skin, cells transfer to
that object and then may be subjected to DNA analysis.” Reed v. State, 541 S.W.3d
759, 765 (Tex. Crim. App. 2017). “One of the limitations of touch DNA analysis is
that it cannot determine ‘when an epithelial cell was deposited.’” Id. at 777. It has
also been recognized that epithelial cells can be deposited by someone other than
the person whose DNA was found: “Just as a person may deposit his own
epithelial cells, he may deposit another’s if those cells were exchanged to him by
touching an item another has touched.” Id. Therefore, the analysis itself cannot
determine who left the DNA or when the DNA was deposited. Id.

Although the court of criminal appeals has acknowledged the limitations or
“special problems” of “touch” DNA on several occasions, the court has never
suggested that “touch” DNA has no probative value or is worthless, as appellant
suggests on appeal. See Hall v. State, 569 S.W.3d 646, 658 (Tex. Crim. App. 2019)
(discussing limitations of “touch” DNA). Rather, the court has explained that “the
significant possibility of [touch] DNA being deposited by an innocent person
reduces the probative value of any exculpatory DNA test result.” Id.

It is worth noting that Hall, Reed, and the most recent discussion of “touch”
DNA in Dunning were in the context of applying the standard for granting or
denying DNA testing in a post-conviction proceeding, in which to warrant testing
an applicant must “show that an exculpatory result on such a test would make a
difference in Appellant’s case.” See Dunning v. State, 572 S.W.3d 685, 693 (Tex.
Crim. App. 2019); Hall v. State, 569 S.W.3d at 649; Reed, 541 S.W.3d at 777. In
the present case, by contrast, we are required to determine whether the evidence is
sufficient to support the conviction. When examining the legal sufficiency of the
evidence, we “must not engage in a ‘divide and conquer’ strategy but must

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consider the cumulative force of all the evidence.” Zuniga v. State, 551 S.W.3d
729, 733 (Tex. Crim. App. 2018) (citing Villa v. State, 514 S.W.3d 227, 232 (Tex.
Crim. App. 2017)).

3. The cumulative evidence is legally sufficient

Because appellant and complainant did not know each other and there was
no evidence they were ever acquainted, appellant’s theory was that
(1) complainant’s killer brushed past appellant and deposited complainant’s DNA
on his jacket or (2) complainant’s DNA was deposited onto the jacket through
contamination in the laboratory. However, these theories were based on
speculation rather than any direct evidence at trial.

As the sole judge of the weight and credibility of the evidence, the jury was
free to accept some, all, or none of a witness’s testimony. See Lancon v. State, 253
S.W.3d 699, 707 (Tex. Crim. App. 2008). The jury heard the testimony from
Rachel Oefelein, who was involved in the 2019 DNA analysis of appellant’s
jacket; the forensic analysist who tested appellant’s jacket in 2016 at the
Department of Public Safety’s Regional Crime Laboratory; as well as appellant’s
DNA expert.

Appellant’s DNA expert testified about the limitations of “touch” DNA
including the fact that trace amounts of DNA from skin cells do not offer any
information about when the DNA was deposited. Appellant’s expert also explained
that one person’s skin cells can be transferred and deposited by another individual.
Appellant’s expert further discussed the possibilities for contamination. The jury
also heard testimony from an analyst at the DPS’s Regional Crime Laboratory who
testified as to the processes and safeguards the laboratory had in place to prevent
cross-contamination. Therefore, the jury was able to resolve any conflicts in the
evidence and reach their own determination about the weight to give the “touch”
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DNA. Given the lack of connection between appellant and complainant, a rational
trier of fact could have concluded that the only plausible explanation for
complainant’s DNA on appellant’s jacket was the result of his attack on
complainant. In so finding, the jury would have determined that the possibility of
laboratory contamination did not rise to the level of a reasonable doubt.

There was also no question that appellant was in vicinity at the time of
complainant’s attack and was seen in surveillance videos just two blocks from the
attack within minutes of the attack. However, appellant argues that the surveillance
videos in which he appears do not show any blood on his clothes or skin. The jury
saw the surveillance videos. Although appellant does not appear with any obvious
blood stains on his clothing, none of the videos are of such high resolution that the
jury could rule out the presence of any blood. Further, the medical examiner
testified that in complainant’s autopsy he found a large volume of blood inside
complainant’s chest cavity, consistent with an injury to his lung that would have
created a vacuum and kept a large volume of complainant’s blood inside his body.
Combined with the angle of attack, the jury heard evidence supporting a
conclusion that appellant did not get much, if any blood, on his clothing. One
witness to the attack described the attacker as very “clean” and no witnesses
described seeing visible blood on the attacker’s clothes.

We defer to the jury’s credibility and weight determinations. See Jackson,
443 U.S. at 326. Reviewing all the evidence in the light most favorable to the
verdict, we conclude the jury could have rationally found beyond a reasonable
doubt that appellant was guilty of murder.

We overrule appellant’s issue one.

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B. Motion to suppress

In issue two, appellant argues the trial court abused its discretion in
overruling his motion to suppress. Appellant argued that the search warrant—used
to seize the jacket containing the DNA evidence—violated his Fourth Amendment
rights because it was conclusory in nature and did not contain enough information
to establish probable cause. U.S. CONST. amend. IV. Specifically, appellant argues
the warrant did not establish why relevant evidence might be obtained in the
Salvation Army room. In response, the State argues that they did not need a search
warrant for the jacket because it was in plain view. Further, the State argues that
the trial court’s finding of probable cause is supported by the affidavit and
reasonable inferences drawn from it.

The Fourth Amendment to the United States Constitution provides that the
“right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated” and mandates
that “no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation.” Id. Similarly, the Texas Constitution provides: “The people shall be
secure in their persons, houses, papers and possessions, from all unreasonable
seizures or searches, and no warrant to search any place, or to seize any person or
thing, shall issue without describing them as near as may be, nor without probable
cause, supported by oath or affirmation. Tex. Const. art. I, § 9 (Tex. Official).

At the core of the Fourth Amendment, and its Texas equivalent, is the
fundamental principle “[s]ufficient information must be presented to the magistrate
to allow that official to determine probable cause; his action cannot be a mere
ratification of the bare conclusions of others.” Illinois v. Gates, 462 U.S. 213, 239
(1983); Foreman v. State, 613 S.W.3d 160, 164 (Tex. Crim. App. 2020) (although
Texas constitution contains no requirement that search or seizure be authorized by

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warrant, inquiry is whether under totality of circumstances and in light of “public
and private interests that are at stake,” search or seizure was “reasonable” which
inquiry generally mirrors Fourth-amendment analysis). Based on this constitutional
threshold, the Code of Criminal Procedure requires that a “sworn affidavit setting
forth substantial facts establishing probable cause shall be filed in every instance in
which a search warrant is requested.” Tex. Code Crim. Proc. Ann. art. 18.01(b).
And no evidence obtained in violation of a constitutional provision or law “shall be
admitted in evidence against the accused on the trial of any criminal case.” Tex.
Code Crim. Proc. Ann. art. 38.23(a).

Probable cause for a search warrant exists when, under the totality of the
circumstances presented in a peace officer’s affidavit, there is a “fair probability”
or “substantial chance” that contraband or evidence of a crime will be found at the
specified location. State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012);
Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010). “It is established law
. . . that a warrant affidavit must set forth particular facts and circumstances
underlying the existence of probable cause, so as to allow the magistrate to make
an independent evaluation of the matter.” Franks v. Delaware, 438 U.S. 154, 165
(1978). However, the magistrate “may draw inferences from the facts.” Id.

The probable cause affidavit at issue provides photographs and a description
of room 211 at the Salvation Army in which appellant was staying at the time of
his arrest. The affidavit contains a very long recitation of facts describing the
police investigation and how appellant came to be a suspect in the investigation. At
the conclusion of the affidavit, the affiant states that an arrest warrant was executed
and appellant “was located in Room #211, as described above, of the Salvation
Army.” The affidavit does not explain how appellant came to be found in room
211, nor does it state that room 211 was his residence. The affidavit also does not

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identify what type of evidence was sought in room 211 other than the broad
description of “evidence of the offense of Murder and/or evidence tending to show
that a particular person committed the offense of Murder.”

During the motion to suppress proceedings, the trial court denied appellant’s
motion to suppress and repeatedly stated that it had determined the search warrant
was supported by probable cause. To the extent that appellant cites comments
made by the trial judge stating that she would not have signed the warrant
personally, those comments are not relevant to the inquiry here. The magistrate
who signed the search warrant could have reasonably drawn an inference from the
description and photographs of room 211, showing a bed and personal effects,
combined with the information that appellant was located in that room at the time
of arrest to conclude that appellant was living in and/or storing personal effects in
room 211 sufficient to establish probable cause.2 On the facts of this case, the trial
court did not abuse its discretion in denying appellant’s motion to suppress.

Having concluded that the search warrant was supported by probable cause,
we need not consider the State’s claim that the jacket was in plain view. We
overrule issue two.

C. Motion to strike the State’s DNA expert

In issue three, appellant argues the trial court abused its discretion when it
denied appellant’s request to strike the testimony of Rachel Oefelein, who testified
on behalf of DNA Labs International, the out-of-state laboratory which tested the
DNA from appellant’s jacket in 2019.

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Although the magistrate did reasonably conclude the facts in the search-warrant
affidavit were sufficient to establish probable cause given the photographs and descriptions in
the record, the search-affidavit is only minimally compliant with the protections required by the
law. Our conclusion in this case can not be expanded to establish that relying on inferences from
photographs or descriptions will always be sufficient to establish probable cause.

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In support of this argument, appellant asserts that Oefelein did not properly
establish that DNA Labs International was accredited in Texas by the Texas
Forensic Science Commission. Pursuant to Code of Criminal Procedure article
38.35, a forensic analysis and any expert testimony relating to the analysis are not
admissible if the laboratory conducting the analysis was not accredited pursuant to
the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 38.35(d)(1).
Although Oefelein testified that DNA Labs International was accredited nationally
and that Texas recognized that accreditation, appellant relies on the fact that the
State did not establish the appropriate predicate for admission of forensic evidence
in Texas.

It is a well-established principle that to preserve an issue for appellate
review, a party must make a timely objection at trial. Tex. R. Evid. 103(a); Tex. R.
App. P. 33.1(a). Timeliness is an important aspect of proper preservation, and
objections, including motions to strike, must be made as soon as the ground for it
“becomes manifest.” Rhoades v. State, 934 S.W.2d 113, 127 (Tex. Crim. App.
1996) (en banc); see Heidelberg v. State, 36 S.W.3d 668, 672 (Tex. App.—
Houston [14 Dist.] 2001, no pet.) (explaining that if it is not possible to object
before evidence is admitted, objection must be lodged as soon as objectionable
nature of evidence becomes apparent and, if sustained, a motion to strike evidence
must be urged); see also Tex. R. App. P. 33.1. Objections or motions made after
the objectionable question has been asked and answered and the witness passed
will not preserve error. See Lagrone v. State, 942 S.W.2d 602, 617–18 (Tex. Crim.
App. 1997) (en banc).

Here, appellant’s challenge to Oefelin’s testimony is one of admissibility.
Article 38.35(d) addresses the admissibility of a forensic analysis. Tex. Code Crim.
Proc. Ann. art. 38.35(d)(1). But the admissibility issue was not raised either before

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or during Oefelein’s testimony. Instead, appellant waited until the day after
Oefelein had been excused—long after the testimony had been admitted into
evidence—to request that her testimony be struck. Appellant offers no explanation
of how he preserved error or why his admissibility objection would not be subject
to the rules of error preservation. Because appellant did not timely make his
objection to the admissibility of Oefelein’s testimony, we conclude this issue has
not been preserved for appellate review.

We overrule issue three.

D. Jury-charge error

In issue four, appellant argues the trial court erred by denying two of his
requested jury instructions. Both instructions related to the accreditation of DNA
Labs International. One of the requested instructions would have instructed the
jury to disregard Oefelein’s testimony if it believed that DNA Labs International
was not properly accredited in Texas. When the trial court denied this requested
instruction, appellant sought an instruction that criminal laboratories must be
accredited to conduct a forensic analysis. The trial court denied this instruction as
well.

Appellant argues there was a fact issue over the status of DNA Labs
International that the jury needed to resolve because the law requiring accreditation
was violated. The Code of Criminal Procedure provides that “where the legal
evidence raises an issue hereunder, the jury shall be instructed that if it believes, or
has a reasonable doubt, that the evidence was obtained in violation of the
provisions of this Article, then and in such event, the jury shall disregard any such
evidence so obtained.” Tex. Code Crim. Proc. Ann. art. 38.23(a). Here, appellant
has not shown there was a fact question raised as to the accreditation of the
laboratory. At trial, the State questioned Oefelein about accreditation as follows:
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Q. And is DNA Labs International an accredited laboratory?
A. Yes.
Q. And what is the accrediting body?
A. ANAB.
Q. What does that stand for?
A. It stands for ANSI National Accreditation Board.
Q. And is that accreditation board recognized all across the country?
A. It is.
Q. Even here in Texas?
A. Yes.

As discussed above, Code of Criminal Procedure article 38.35 requires that
to be admissible, a forensic analysis and any expert testimony relating to the
analysis must have been conducted in an accredited laboratory. Tex. Crim. App.
Proc. Ann. art. 38.35(d)(1). Here, the State did not specifically ask if DNA Labs
International was accredited with the Texas Forensic Science Commission. But
there was no testimony or questioning that raised any concern about the
accreditation of DNA Labs International with the Texas Forensic Science
Commission. The testimony and questioning before the jury established that DNA
Labs International enjoyed nationwide accreditation and that its accreditation was
recognized in Texas.

Because a jury charge instruction is only appropriate if there is a fact issue
or question that is raised by the evidence, the trial court did not err in refusing to
include appellant’s requested instructions into the jury charge. See Tex. Code
Crim. Proc. Ann. art. 38.23(a).

We overrule issue four.

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III. CONCLUSION

We affirm the judgment of the trial court as challenged on appeal.

/s/ Charles A. Spain
Justice

Panel consists of Justices Jewell, Spain, and Wilson.
Do Not Publish — Tex. R. App. P. 47.2(b).

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