Affirmed and Memorandum Opinion filed August 11, 2016.




                                    In The

                   Fourteenth Court of Appeals

                             NO. 14-15-00840-CR


                  MICHAEL JEROME CLARK, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 177th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1366492

                 MEMORANDUM OPINION

      Appellant, Michael Jerome Clark, appeals his conviction for capital murder,
contending, in a single issue, that the evidence is insufficient to support the
conviction. We affirm.

                               I. BACKGROUND

      According to the State’s evidence, during relevant times, complainant Syed
Hussain and Sujesh Mahajan were both employed at a gas station in Houston.
Occasionally, Mahajan would make the station’s bank deposit and carry the money
hidden inside a fast-food bag. On June 17, 2011, Mahajan planned to make the
deposit, and accompanied by Hussain, went to Mahajan’s car parked on the
property. While Mahajan was opening his car door, he saw a hand reach from
behind in an attempt to grab the bag of money. Mahajan rushed into the driver’s
seat and closed the door while Hussain was still outside of the vehicle. Mahajan
then heard one or two gun shots, but he did not see a shooting or the gunman.
Hussain entered the passenger’s seat and was bleeding from his stomach. Hussain
was transported to the hospital where he died from a gunshot wound to his
abdomen.

       Byron Smith, who was walking by the station during the shooting, saw a
station employee and another man wrestling over a bag. That man fired two shots
with a gun, and one shot struck another station employee causing him to bend
down. The gunman then placed the gun to that employee’s head and pulled the
trigger twice, but the gun jammed. The gunman ran away toward a trail alongside
a store adjacent to the station. He dropped the gun when he struck a pole but
retrieved it and continued running. Smith could not clearly see the gunman’s face
but generally described him as black, medium-built, slightly under six feet tall, and
wearing a white shirt, black shorts, and a black stocking cap1 with a baseball cap
on top of that.

       Another witness, John Washington, who lived in a house by the trail, heard a
gunshot and looked out his window. He saw a man rounding a corner by the
station at issue, heard two more gunshots, and saw the man run away from the
station. The man shoved an object down the back of his pants and then continued

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         Witnesses referred to the cap at various times as a “stocking cap,” “wave cap,” “skull
cap” or “doo rag.” For consistency, we will refer to it as a “stocking cap.”

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by Washington’s house. After the man crossed the street by Washington’s house,
the man pulled a two-piece item off his head, and part was a stocking cap which
fell to the ground. The man continued running, and Washington lost sight of him.
Washington did not see the man’s face but described him as black, about 5'10-11'',
and 150-180 pounds. Washington showed police officers the stocking cap at the
place where it was dropped.

      Officers found shell casings from a .380 caliber gun at the scene and
recovered the stocking cap. The station’s surveillance equipment recorded a man
in a white shirt wait about ten minutes in bushes near Mahajan’s parked car,
immediately approach the employees when they reached the car with Mahajan
carrying the bag, struggle with the employees, make a motion toward Hussain
resulting in Hussain bending over and grabbing his abdomen, and then run away.
But the recording was not sufficiently clear to aid in identifying the perpetrator.
The police had difficulty identifying a suspect until over a year after the incident
when the results of DNA testing on the stocking cap received a “hit” for appellant
in the police database. An officer met with appellant and obtained a buccal swab.
That officer testified that appellant generally matched the descriptions given by
Smith and Washington as to race, height, and weight. The officer showed a photo
array, which included appellant’s photo, to Mahajan, Smith, and possibly
Washington, but no witness could identify appellant.

      A criminalist with the Houston Forensic Science Center swabbed all
surfaces on the inside and outside of the stocking cap for materials. A DNA
analyst compared the DNA profile from two portions of those materials to the
DNA from appellant’s buccal swab. The analyst determined that (1) appellant
could not be excluded as a contributor to both portions of materials obtained from
the stocking cap, and (2) the probability that a randomly chosen unrelated African

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American contributed the DNA was one in 430 quintillion for one portion of the
materials and one in 29 quintillion for the other portion.

      Appellant presented testimony from his brother, who stated that in 2011,
appellant donated clothes for the homeless at a church several miles from the gas
station at issue, although the brother could not identify the items donated. The
brother also confirmed that appellant was living with a sibling a few miles from the
station at the time of the offense.

      A jury found appellant guilty of capital murder. The State did not seek the
death penalty, so appellant was automatically sentenced to life imprisonment
without parole. See Tex. Penal Code Ann. § 12.31(a)(2) (West Supp. 2015).

                       II.    SUFFICIENCY OF THE EVIDENCE

      In addressing a challenge to sufficiency of the evidence, we view all
evidence in the light most favorable to the verdict and determine, based on that
evidence and any reasonable inferences therefrom, whether any rational fact finder
could have found the elements of the offense beyond a reasonable doubt. Gear v.
State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). This standard gives full play
to the responsibility of the trier of fact to fairly resolve conflicts in the testimony,
weigh evidence, and draw reasonable inferences from basic facts to ultimate facts.
Id. The trier of fact may choose to believe or disbelieve any portion of a witness’s
testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). We
do not sit as the thirteenth juror and may not substitute our judgment for that of the
jury by re-evaluating the weight and credibility of the evidence. Isassi v. State,
330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Our duty as reviewing court is to
ensure the evidence presented actually supports a conclusion that the defendant
committed the crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007).
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       Under the law applicable to appellant’s case, a person commits capital
murder if he intentionally causes the death of an individual in the course of
committing or attempting to commit robbery.         See Tex. Pen. Code Ann. §§
19.02(b)(1), 19.03(a)(2) (West 2011). On appeal, appellant does not dispute that a
person intentionally caused complainant’s death during the course of committing
or attempting to commit robbery. Rather, appellant’s sole argument concerns
identity; he contends the evidence is insufficient to establish he was the individual
who committed the capital murder and raised merely a suspicion. We disagree.

      Appellant emphasizes that no eyewitness could provide more than a general
description of the gunman or identify appellant. However, each fact need not point
directly and independently to guilt, as long as the cumulative force of all
incriminating circumstances is sufficient to support the conviction. Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).            The following evidence
collectively supported the jury’s finding that appellant was the gunman: (1) the
witnesses’ general descriptions of the gunman matched appellant’s characteristics;
(2) the fact that the gunman waited ten minutes for the employees to walk to their
car and immediately approached them raised a rationale inference the gunman
knew the employees’ habits in depositing money, and appellant lived near the
station; and (3) the DNA analysis presented astronomical odds that any African
American other than appellant contributed the DNA on the stocking cap worn and
then dropped by the gunman.

      In this regard, appellant also challenges that such DNA analysis indicated
appellant was the gunman. First, appellant asserts that DNA from more than one
person was present on the stocking cap and appellant donated clothing the same
year as the offense. Therefore, appellant suggests his DNA was on the stocking
cap as its previous owner but some donee must have committed the murder.

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However, appellant misconstrues the testimony of the DNA analyst. The analyst
explained that (1) for both samples from the skull cap, he detected a “single source
profile” with an “additional minor . . . allele,” (2) the additional allele could be
from another individual but could also be an elevated baseline, and the majority of
the profile was from one individual, and (3) the additional allele was not a
sufficient amount to show the DNA was a mixture from two individuals.
Accordingly, there was no evidence establishing that DNA from more than one
individual was present on the cap. The jury could have rationally inferred that the
primary contributor to the DNA on an item such as a stocking cap which conforms
completely to the head would be the person who had last worn the cap. Moreover,
the jury was free to reject the testimony of appellant’s brother, particularly because
he failed to identify the stocking cap as an item allegedly donated by appellant.

      Next, appellant argues that Washington could not identify the stocking cap
recovered by the police and tested for DNA as the item that Washington saw the
gunman drop and Washington’s testimony was inconsistent on that subject.
Washington originally testified he could not tell what sort of item the man dropped
as he fled from the station. However, Washington did not waver in testifying the
man dropped such item, Washington showed the police the exact spot where it was
dropped, and the item recovered by the police was the stocking cap. Additionally,
during the State’s redirect examination of Washington, he listened, off the record,
to the statement he gave the police after the incident. He then testified that such
statement refreshed his memory that the item dropped was a stocking cap. We
defer to the jury’s implicit conclusion that Washington’s change in testimony from
being unable to identify the item to stating it was a stocking cap was not an
inconsistency undermining his credibility but a matter of refreshing his memory.



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Consequently, the jury was free to believe that the DNA evidence proved appellant
was the gunman who dropped the stocking cap while fleeing the shooting.

      In summary, because the evidence is sufficient to support the jury’s verdict,
we overrule appellant’s sole issue and affirm the trial court’s judgment.




                                              /s/   John Donovan
                                                    Justice



Panel consists of Justices Busby, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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