                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-12-00149-CR



        BRANDY LASHAY COOKS, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 202nd District Court
                 Bowie County, Texas
             Trial Court No. 12F-488-202




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                                MEMORANDUM OPINION
         Brandy Lashay Cooks was convicted of aggravated robbery with a deadly weapon

enhanced by one prior felony conviction. See TEX. PENAL CODE ANN. § 29.03 (West 2011),

§ 12.42(c)(1) (West Supp. 2012). Cooks pled true to an enhancement allegation, and a jury

assessed his punishment at fifty-five years’ imprisonment. Cooks asserts that the evidence is

legally insufficient to establish he was the person who committed the robbery. We affirm the

judgment of the trial court.

I.       Standard of Review

         In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the trial court’s judgment to determine whether any rational jury could have found the essential

elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305

S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We examine legal sufficiency under

the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to

fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)

(citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007).

II.      Facts of the Offense

         Returning from the grocery store shortly after dark on November 22, 2010, Mary Hedrick

confronted in her driveway an unknown assailant with a gun. The assailant hit Hedrick in the


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head twice. The assailant then stole her purse, told her to get her “fat A-- in the house,” and left.

As the unknown assailant was leaving, Hedrick saw the assailant’s white knit hat come off.

Hedrick, who was bleeding profusely, watched the hat on the ground until the police arrived.

        Not only did the sight of the gun put Hedrick in fear of her life, the pain of her wounds

and the fact that there was “blood everywhere” 1 led Hedrick to believe she had been shot and

that she was going to die. Hedrick testified she was focused on the gun and did not get a good

look at the assailant. Hedrick described the assailant as a black male “about my height,” which

was five feet seven inches, 2 whose age she approximated at “late teens, early twenties.”

        Don Berry, Hedrick’s neighbor, observed part of the robbery. Berry heard a loud thump

and went to a window where he saw Hedrick being robbed. Berry described the assailant’s

height as “between 5’4” and 5’7.” Berry testified that the robber was “fairly short, kind of

stocky built . . . . I would imagine somewhere between, just off my weight, between 170 and 180

pounds, something like that.” Berry also saw the assailant’s white knit hat come off.

III.    Sufficiency of the Evidence

        Approximately one year later, a DNA test revealed that the hat contained a mixture of

DNA from two persons. Cooks was determined to be the major contributor, whose DNA could

not be excluded from the fifteen different locations on the hat that were tested. The DNA of the

unknown contributor was excluded from ten of the fifteen locations tested and could not be

excluded from five of the locations. After testifying that the peak of Cooks’ DNA was also
1
 At the hospital, Hedrick received a CT scan and staples for her head wound. Hedrick described the pain as “like the
inside of my head was on raging fire.”
2
 Because the assailant was standing on a flower bed that had been filled with concrete, the assailant could have
appeared to be taller than he was.
                                                         3
higher than the peak of the unknown contributor, the State’s expert gave the following

testimony:

        Q.    And what was your determination in looking at the peak heights of these
        two DNA profiles?

        A.      I was able to determine that Brandy Cooks was not a major component to
        the profile. However, he was a major contributor.

Although this testimony is not altogether clear, the State’s expert did clearly communicate that

Cooks was a major contributor. The State’s expert, though, agreed that there was no way to

determine how long the DNA had been on the cap.

        The State introduced an interrogation video recording in which Cooks merely denies

knowing anything about the robbery. 3 Detective Daphne Stiles testified, over Cooks’ objection,

that she found it odd that Cooks did not ask questions about the white knit hat such as its color,

style, or anything of that nature. Stiles also testified, again over Cooks’ objection, that Cooks did

not have any work history.

        The State also introduced evidence that Cooks had relatives who lived in a garage

apartment near Berry’s house and that Cooks had visited the apartment. Stiles further testified

that Cooks owned a black hat similar to the white hat found at the crime scene.

        Cooks argues that even though DNA evidence is very “powerful,” it generally is

accompanied by other evidence implicating that the defendant participated in the crime. He cites

to a number of cases that were affirmed on legal sufficiency grounds, but they are all factually



3
 We note that Cooks waived his Fifth Amendment rights prior to the interrogation. On appeal, Cooks does not argue
his right to a presumption of innocence was violated.
                                                       4
distinguishable from this case. 4 One of the cases relied upon by Cooks is Marquez. In that case,

the victim walked in on a burglary, punched the burglar, and then was beaten. Marquez, 2008

Tex. App. LEXIS 3467, at *1. The victim, age seventy-three, had poor eyesight and could only

identify the burglar as a light-skinned Hispanic person of medium height and weighing

approximately 180 pounds. Id. at *2. At the scene of the burglary, a hat was recovered

containing DNA from two persons. Id. Marquez could not be excluded as the major contributor.

Id. Even though a suitcase with some of the victim’s belongings was found in the custody of a

third person, the Dallas Court of Appeals concluded that sufficient evidence existed to convict

Marquez. 5

        The cases cited by Cooks give us examples of instances in which the evidence was found

to be sufficient, rather than DNA cases in which the evidence was deemed insufficient.




4
 See Hunt v. State, No. 13-10-00551-CR, 2011 Tex. App. LEXIS 7007 (Tex. App.—Corpus Christi Aug. 29, 2011,
pet. ref’d) (mem. op., not designated for publication) (DNA found on ski mask at scene, no one else’s DNA on ski
mask, false alibi); Perry v. State, No. 14-09-00937-CR, 2010 Tex. App. LEXIS 9826 (Tex. App.—Houston [14th
Dist.] Dec. 14, 2010, no pet.) (mem. op., not designated for publication) (defendant matched description, fled from
police and wrecked car fleeing; purse and gun found nearby; DNA matched cap at scene; no mention of anyone
else’s DNA); Oliver v. State, No. 14-09-00690-CR, 2010 Tex. App. LEXIS 6850 (Tex. App.—Houston [14th Dist.]
Aug. 24, 2010, no pet.) (mem. op., not designated for publication) (DNA matched cap left at scene and unknown
person, gave false name to police, found with two guns, $1,000.00 cash, and the victim’s license and credit cards);
Marquez v. State, No. 05-07-00635-CR, 2008 Tex. App. LEXIS 3467 (Tex. App.—Dallas May 14, 2008, no pet.)
(mem. op., not designated for publication) (discussed below); King v. State, 91 S.W.3d 375, 377 (Tex. App.—
Texarkana 2002, pet. ref’d) (DNA match, only DNA present, past conviction for window peeping in same
neighborhood); Roberson v. State, 16 S.W.3d 156, 170 (Tex. App.—Austin 2000, pet. ref’d) (DNA evidence of
match with sperm sufficient by itself in rape case); Williams v. State, 848 S.W.2d 915, 916 (Tex. App.—Texarkana
1993, no pet.) (evidence sufficient when one assailant identified by victim, one assailant admitted having sex with
victim, defense witnesses caught lying, assailant knew victim through wife, and one assailant matched DNA of
blood secreted with semen).
5
 Marquez also complained that the other incriminating evidence from an inmate was unreliable and was likely an
attempt to frame him.

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        The State does not have to disprove all alternative reasonable hypotheses. See Brown v.

State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995); Jones v. State, 963 S.W.2d 826, 830 (Tex.

App.—Texarkana 1998, pet. ref’d).            The State has the burden to present evidence that is

sufficient to allow a rational juror to conclude, beyond a reasonable doubt, that Cooks committed

the crime in question.

        The DNA match proves that Cooks, at some time, wore the white cap dropped by the

robber. Cooks had a similar black knit cap when arrested, and a rational juror could have

concluded that the white cap belonged to Cooks. While we acknowledge that the evidence can

be legally insufficient even when a suspect is linked to the scene by DNA evidence, 6 the DNA

evidence is not the sole evidence linking Cooks to this offense. Cooks is also linked to the

offense based on his unusually short height and his familiarity with and presence in the area

where Hedrick’s home was located.

        Cooks’ physical appearance is consistent with the description of the robber given by both

Hedrick and Berry—a short, black male with a youthful appearance.                            A particularly

distinguishing feature was that the robber was unusually short. A juror is not required to ignore

the general experience and common knowledge of laypersons. A layperson would be permitted

to note that most adult males are taller than Cooks’ height of five feet four inches. The fact that




6
 Reedy v. State, 214 S.W.3d 567, 585 (Tex. App.—Austin 2006, pet. ref’d) (evidence legally insufficient despite
suspect’s DNA on whiskey bottle at suspect’s campsite where the murder occurred).

                                                      6
Hedrick described the robber’s age as late teens or early twenties when it appears he was in his

thirties was an issue for the jury to resolve. 7

         Further, Detective Stiles testified that Cooks had relatives who lived less than a block

from the site of the robbery. Cooks’ relatives rented a garage apartment directly behind the

home of Berry—the across the street neighbor to Hedrick. Stiles testified her investigation

revealed that Cooks was known to have been a frequent visitor to the garage apartment. From

the testimony of Stiles, a rational juror could have concluded Cooks was familiar with the area,

was frequently in the area, and had the opportunity to commit the crime in question.

         As noted by the Texas Court of Criminal Appeals, “proof of circumstantial evidence is

not subject to a more rigorous standard than is proof by direct testimonial evidence.” McGee v.

State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989). Although we may not have reached the

same decision, we are unable to conclude a rational juror could not have found Cooks guilty

beyond a reasonable doubt. Therefore, we defer to the jury’s decision. The combined persuasive

force of Cooks’ DNA on the cap worn by the robber, Cooks’ unusually short height consistent

with the eyewitnesses’ descriptions of the robber, and the fact that Cooks had familiarity with the

area is sufficient evidence. We conclude a rational juror could have found Cooks guilty beyond

a reasonable doubt.




7
 The clerk’s record contains a criminal history datasheet that indicates Cooks is five feet four inches tall and lists
eight possible dates of birth: 12/03/1973, 12/30/1975, 12/31/1975, 12/03/1976, 12/26/1976, 12/21/1977,
12/30/1977, and 12/31/1977. The incident occurred in November 2010. We note that documents filed in the
clerk’s record are not evidence, and we have not been directed to where the record contains evidence of Cooks’
height and age. We acknowledge, however, that the jury was able to observe Cooks in the courtroom and determine
whether he matched the general descriptions of Hedrick and Berry.
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IV.    Correction of Clerical Error

       During our review of this case, we noticed that the judgment incorrectly states that Cooks

pled guilty and waived his right to a jury trial and that the trial court assessed punishment. This

Court has authority to modify the judgment to make the record speak the truth when the matter

has been called to our attention by any source. French v. State, 830 S.W.2d 607, 609 (Tex.

Crim. App. 1992). “Our authority to reform incorrect judgments is not dependent on the request

of any party, nor does it turn on a question of whether a party has or has not objected in trial

court; we may act sua sponte and may have a duty to do so.” Rhoten v. State, 299 S.W.3d 349,

356 (Tex. App.—Texarkana 2009, no pet.). We modify the judgment to provide that Cooks pled

not guilty and was convicted by a jury and that the jury assessed punishment.

V.     Conclusion

        The evidence is legally sufficient. We modify the judgment to provide that Cooks pled

not guilty, that Cooks was convicted by a jury, and that the jury assessed punishment. As

modified, we affirm the judgment of the trial court.



                                                       Jack Carter
                                                       Justice

Date Submitted:       April 29, 2013
Date Decided:         June 5, 2013

Do Not Publish




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