Opinion filed April 28, 2011




                                           In The


   Eleventh Court of Appeals
                                         __________

                                    No. 11-09-00127-CR
                                        __________

                    COLONEL LIVINGSTON LEWIS, Appellant

                                               V.

                                STATE OF TEXAS, Appellee


                           On Appeal from the 385th District Court
                                  Midland County, Texas
                              Trial Court Cause No. CR35139


                               MEMORANDUM OPINION

       The jury convicted Colonel Livingston Lewis of aggravated sexual assault of a person
sixty-five years old or older. The trial court assessed his punishment at confinement for a term
of forty years in the Institutional Division of the Texas Department of Criminal Justice.
Appellant challenges his conviction in a single issue. We affirm.
                                       Background Facts
       The victim, W.V., testified that a man entered her apartment in the early morning hours
of July 19, 2008, and sexually assaulted her. W.V. was sixty-seven years old at the time, and she
lived alone in the Ashton Way Apartments. She had left the door to her patio open that night
because her air conditioner was not working. As she lay asleep on a sofa in her living room, she
was rushed by a man coming through her patio door. He told her not to scream as he put his
hand over her mouth. Her attacker put a terry cloth rag over her face and told her not to look at
him. He then raped her both vaginally and anally over the course of the next thirty minutes.
After the assault concluded, the attacker told W.V. to “wash up” in her bathroom to remove
DNA evidence from her body. Her eyes remained covered during this time except for a brief
moment when W.V. saw her attacker from the waist down. He then instructed W.V. to go inside
her bedroom and wait there until she counted to thirty. W.V.’s attacker then left her apartment
during this period, after which W.V. called the police.
         Detective Charles Sims of the Midland Police Department responded to Midland
Memorial Hospital when notified of the sexual assault to meet with W.V. He then transported
her back to her apartment after she was examined and treated at the hospital. Detective Sims
recovered a large, unique shoe print from inside W.V.’s living room. He found the same shoe
print outside her apartment. Detective Sims also found a chair that had been used by the attacker
to climb onto W.V.’s patio.
         W.V. told Detective Sims that she did not know her attacker but that she believed he was
a black male in his late twenties to thirties in age with large thighs and large lips. She estimated
his height to be 5’6” to 5’8” and his weight to be 200 pounds with a stocky, muscular build.
Based on W.V.’s description, Detective Sims identified Marcus Boykins as an initial person of
interest. Boykins was a frequent visitor to the apartment complex, and his physical build
appeared to match W.V.’s description.                   Boykins voluntarily provided a DNA sample to
Detective Sims. A subsequent comparison of his DNA to that of the semen recovered from
W.V. excluded him as the source of the semen.
         The DPS crime lab in Lubbock subsequently informed Detective Sims that there was a
“DNA CODIS hit” for the semen recovered from W.V.1 The CODIS manager advised Detective
Sims that the source of the DNA extracted from the semen matched appellant’s DNA profile.
Based upon this information, Detective Sims obtained a search warrant for appellant’s DNA and
his residence in Midland. Detective Sims executed the search warrant on September 8, 2008.
He recovered a pair of Steve Madden shoes from inside appellant’s home that had the same
unique shoe print that he found at W.V.’s apartment.


         1
             “CODIS” is an acronym for the Combined DNA Index System. See TEX. GOV’T CODE ANN. § 411.142 (Vernon Supp.
2010).

                                                            2
       Detective Sims also obtained a recorded statement from appellant. Appellant stated that
he had lived in the Ashton Way Apartments for two years in the past and that he was last there a
month or two ago around 12:30 to 1:00 a.m. He further stated that he recalled having consensual
sex with an older lady at the apartment complex. He initially stated that he entered her apartment
through the front door by knocking on it. In this regard, he stated that, although he did not know
the lady’s name, he knew her and had been inside of her apartment on fifty to sixty prior
occasions.       When confronted with the presence of his shoe prints outside the patio door,
appellant subsequently admitted that he climbed over the balcony and entered through the patio
door. However, he continued to assert that the woman invited him inside. He stated that they
talked for two hours and then they engaged in consensual sex.
       Detective Sims obtained a DNA sample from appellant and forwarded it to the DPS
crime lab in Lubbock. Stephen Brent Hester, a forensic scientist at the crime lab, performed a
comparative analysis of appellant’s DNA sample to the DNA profile extracted from the semen
recovered from W.V. He concluded that appellant could not be excluded as the source of the
DNA extracted from the semen. As per his report:
       The probability of selecting an unrelated person at random who could be the
       source of the major component in this DNA profile is approximately 1 in 5.679
       septillion for Caucasians, 1 in 7.692 sextillion for Blacks and 1 in 4.958 septillion
       for Hispanics. To a reasonable degree of scientific certainty, [appellant] is the
       source of the major component from this DNA profile (excluding identical twins).

       Appellant did not testify during the guilt/innocence phase. However, his trial counsel
stated during his opening statement: “We have a man who openly confesses to the police he had
sex with this lady.” Appellant called his wife as a defense witness to testify that she and
appellant knew W.V. and had been inside her apartment on occasion to borrow W.V.’s telephone
while they lived in the same apartment complex. W.V. testified that she did not remember
appellant or his wife when she was recalled to the stand during appellant’s case-in-chief.
                                                   Sufficiency of the Evidence
       In a single issue, appellant challenges the legal and factually sufficiency of the evidence
supporting his conviction. We note at the outset of our analysis that the Texas Court of Criminal
Appeals has now held in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), that there is
“no meaningful distinction between the Jackson v. Virginia2 legal-sufficiency standard and the

       2
           Jackson v. Virginia, 443 U.S. 307 (1979).

                                                            3
Clewis3 factual-sufficiency standard;” that the Jackson v. Virginia standard is the “only standard
that a reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a reasonable doubt;”
and that “[a]ll other cases to the contrary, including Clewis, are overruled.” Brooks, 323 S.W.3d
at 895, 902, 912 (footnotes added). Accordingly, a challenge to the factual sufficiency of the
evidence is no longer viable.4
       To determine if the evidence is legally sufficient, we must review all of 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 crime beyond a reasonable doubt. Jackson, 443 U.S. at 319;
Brooks, 323 S.W.3d at 899; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007);
Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). In conducting a legal sufficiency
review, we are required to defer to the jury’s role as the sole judge of witness credibility and the
weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for
the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and
therefore defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
Each fact need not point directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to support the conviction.
Hooper, 214 S.W.3d at 13.
       Appellant premises his challenge to the sufficiency of the evidence on the contention that
W.V. “never positively identified her attacker.” He asserts that she could not give a detailed
description because she was only able to get a very brief, partial glimpse of her attacker. He also
contends that his height of 6’2” and weight of 400 pounds was much larger than what W.V.
described to the police. He is essentially asserting that W.V. was attacked by another person that
entered her apartment after he engaged in consensual sex with her and that this attacker might




       3
           Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).

       4
           We note that appellant did not have the benefit of the opinion in Brooks when this case was briefed.

                                                                4
have used a condom that prevented any semen from the attacker from being discovered
afterwards.
         As the sole judge of the credibility of the witnesses, it was the jury’s role to weigh the
credibility of the witnesses’ testimony and resolve the conflicts in the evidence. In this regard,
W.V. testified that she only had one sexual encounter that evening and that it occurred without
her consent.5 It was within the jury’s province to accept this evidence as the credible account of
what transpired between her and appellant. The fact that she could not identify appellant as her
attacker is of no practical consequence given the DNA evidence and appellant’s
acknowledgment that he had sex with her. Furthermore, it was well within the jury’s right to
reject appellant’s self-serving statement that his relations with W.V. were consensual. In support
of the jury’s credibility determination, we note the seemingly incredulous nature of appellant’s
account. We further note appellant’s initial misstatement to Detective Sims that he entered
W.V.’s apartment through the front door. Reviewing all of the evidence in the light most
favorable to the verdict, we conclude that any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Appellant’s sole issue is overruled.
                                                       This Court’s Ruling
          The judgment of the trial court is affirmed.




                                                                                     TERRY McCALL
                                                                                     JUSTICE


April 28, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel6 consists of: Wright, C.J.,
McCall, J., and Hill, J.7




         5
             W.V. testified that she did not have sex in the fifteen years prior to this episode.

          6
            Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a
successor by the governor.

         7
             John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

                                                                     5
