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Whitfield v. State

Court of Appeals of Texas, Fourteenth District

March 9, 2017


         On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 1424070

          Panel consists of Chief Justice Frost, Justice Brown, and Justice Jewell.



         Appellant Herman Ray Whitfield was convicted by a jury of aggravated sexual assault. See Tex. Pen. Code § 22.021(a)(2)(A)(iv) (West 2015). Appellant elected to have the trial court assess his punishment and pleaded true to the two felony enhancements alleged in his indictment. The trial court sentenced him to confinement for life. Appellant filed a motion for new trial, which the trial court denied after a hearing.

         Appellant raises two issues. First, he argues that the trial court should have sustained his objections based on his Sixth Amendment right to confrontation and Bullcoming v. New Mexico, 564 U.S. 647 (2011), under circumstances where the State presented an expert DNA analyst who testified regarding her DNA comparison results instead of presenting all the technicians involved in the DNA testing process. Second, appellant contends that the State's actions related to posting on social media about his trial were so egregious that they amounted to a denial of due process. We affirm.

         I. Background

         Trial evidence showed that on June 11, 2008, J.B., a high school student, took a bus over to her best friend's apartment in the Sunnyside area of Houston, Texas. They hung out for a few hours. After J.B.'s mother called her to return home, J.B. left the apartment. While J.B. was walking along a trail back to her bus stop, a man grabbed her and put a pocket knife to her neck. The man had dark skin, wore sunglasses and a baseball cap, and appeared to be in his 30's or 40's. The man forced J.B. under barbed wire fencing into the nearby grassy woods and slammed her body onto the ground, face down. The man forced down J.B.'s shorts and sexually assaulted her, then ran away, leaving J.B. in the grassy woods.

         J.B.-shoeless, crying, shaking, scratched, and disheveled-returned to her friend's apartment. Her friend called 9-1-1 to report what had happened. HPD Officer Chillis responded. Chillis and J.B. returned to the grassy woods, where they located J.B.'s shoes. J.B. then was transported to the hospital, where she was examined by a sexual assault nurse examiner. The nurse examiner collected evidence from J.B., including the articles of clothing worn during the attack and a buccal swab from the inside of J.B.'s mouth. HPD Officer Landrum collected this evidence from the hospital. The investigation was assigned to HPD Officer McMurtry. McMurtry obtained J.B.'s statement, and a description of the suspect was released to the public.

         Starting in 2010, the HPD Crime Lab[1] began working through a large backlog of rape kits and evidence that needed to be tested for DNA, including evidence from J.B.'s case. In 2013, HPD Officer Whitlock became involved with the investigation. Whitlock obtained a search warrant for appellant's DNA and collected a buccal swab from him. Appellant was ultimately charged with the aggravated sexual assault of J.B. Appellant's indictment also alleged two prior felony convictions.

         At trial, the State presented expert testimony from Lloyd Halsell and Amy Castillo regarding the DNA testing conducted in this case. Both Halsell and Castillo testified that at the HPD Crime Lab, DNA testing is conducted in an assembly-line or batch process. At the time, Halsell was a DNA analyst and supervisor at the HPD Crime Lab. He testified that, at the lab, technicians extracted, quantified, and amplified DNA from appellant's buccal swab. A portion of this amplified DNA was inserted into a lab instrument for analysis. The instrument "separate[d] out and visualize[d] the data, " generating a known DNA profile for appellant. Halsell explained how positive and negative controls, as well as flushing protocols, are used to ensure that the instrument is not subject to cross-contamination among samples. Halsell further explained that the DNA profile consists of numerical code data on 15 individual short tandem repeat locations plus a sex-determining marker. The DNA profile or allele chart is unique to each individual except for identical twins. Halsell interpreted the DNA profile generated from appellant's buccal swab and determined that it reflected a complete male DNA profile from one known individual. According to Halsell, once DNA profiles are generated from known references, they can be compared to DNA profiles generated from evidentiary items.[2]

         At the time, Castillo also was a DNA analyst and supervisor at the HPD Crime Lab. Castillo testified that lab technicians performed DNA extraction, quantification, amplification, and separation from the buccal swab in J.B.'s rape kit, generating a known DNA profile for the victim J.B. In addition, evidence from J.B.'s rape kit and the clothing collected from J.B. were screened for potential body fluids. They tested negative for semen. However, lab technicians were able to extract, quantify, amplify, and separate out DNA from a bloodstain on J.B.'s shorts, generating an unknown DNA profile.

         During Castillo's testimony, appellant's counsel raised various objections based on a "Sixth Amendment Bullcoming, Melendez-Diaz [v. Massachusetts, 557 U.S. 305 (2009)], and Crawford [v. Washington, 541 U.S. 36 (2004)] issue."[3] The trial court overruled these objections.

         Castillo interpreted the known DNA profile generated from J.B.'s buccal swab and determined that it was a full DNA profile from a female single source. Castillo also interpreted the unknown DNA profile and determined that it was a full DNA profile from a male single source. As a result, Castillo was able to eliminate J.B. as the contributor of the blood on her shorts. Castillo then compared the allele charts for appellant's known DNA profile and for the unknown male DNA profile and determined that they were the same. Castillo concluded that appellant could not be excluded as the source:

The conclusion that we drew on that comparison is that Herman Whitfield cannot be excluded as a possible contributor to the profile from that item. We then do statistics to show the odds that another random individual could be included as a contributor to that profile, and what was calculated was 1 in 310 quintillion for Caucasian, 1 in 1.5 sextillion for African Americans, and 1 in 130 sextillion for southwest Hispanics.

         Castillo explained that there are 21 zeros in a sextillion versus 9 zeros in a billion. According to Castillo, based on a world population of 7.7 billion, one would have to test "multiples of the world's population" "to find somebody else to include as a contributor to that profile."

         The jury returned a "guilty" verdict. Appellant elected to have the trial court instead of the jury determine his punishment. Appellant entered into a stipulation of evidence with regard to the two prior felony convictions and pleaded true to both. The trial court sentenced appellant to life in prison.

         During appellant's trial, the Harris County District Attorney's Office posted about appellant on its official Facebook and Twitter pages. The Facebook post included appellant's image and described him as the "Sunnyside Rapist" "who has allegedly been tied to some 21[] sexual assaults in the Houston area." The Twitter post also included appellant's image and stated: "Herman Whitfield aka the sunnyside rapist is on trial this week. We are seeking justice for all his victims #trials." Appellant filed a motion for new trial, arguing that the State's use of social media violated the Texas Rules of Disciplinary Conduct, denied appellant due process, and caused an unfair trial.[4] The trial court held a hearing. During the hearing, all of the jurors testified. They confirmed that they did not ...

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