Tuesday, July 13, 2010
Media Advisory: Derrick Jackson scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Derrick Leon Jackson, who is scheduled to be executed after 6 p.m. on Tuesday, July 20, 2010. A Harris County jury found Jackson guilty of capital murder for killing Forrest Henderson and Alan Wrotenberry.

FACTS OF THE CRIME

Forrest Henderson and Alan Wrotenberry were Houston Grand Opera singers who lived in Henderson’s apartment. On Monday, September 12, 1988,Alan Wrotenberry failed to appear for work at Deer Park Elementary School, where he was employed as a music teacher. At 9 a.m., the school principal contacted Henderson’s apartment manager to check on Wrotenberry. The manager unlocked Henderson’s apartment door and found nothing disturbed in the living room and kitchen. He proceeded to one of the bedrooms, pushed open the door, and saw a body covered with blood. He promptly left and called 911.

Police officers arrived at the apartment soon thereafter and detected no signs of forced entry. They found Wrotenberry’s and Henderson’s bodies in their respective bedrooms at opposite ends of the apartment.

Henderson’s nude body was lying face-down in his bed, and Wrotenberry’s body, clad only in a pair of swimming trunks, was lying on the floor of his bedroom. Police found a bloody metal bar in the hallway and a bloody knife in the kitchen sink. Blood was all over the bedroom walls, doors, and curtains. Both victims’ wallets were missing, and Henderson’s car was gone. Two or three days later the car was recovered after a chase following a burglary at a mall, but the driver was not apprehended. Apart from the burglary, police recovered no other evidence from the car.

A forensic pathologist testified that Alan Wrotenberry suffered a severed carotid artery, cuts to the vertebrae, and at least three blows to the back of the head with a narrow blunt instrument, such as a pipe. Forrest Henderson received a shallow, non-fatal cut to the neck, defensive wounds on both arms, a six-inch fracture of the skull from blunt force, and multiple stab wounds to the torso. Fixed lividity in both bodies signified that both victims were dead for more than eight hours before they were found.

Blood samples and 20 identifiable fingerprints were collected from the crime scene, but the Houston Police Department (HPD) was unable to develop leads to a suspect.

In 1995, HPD upgraded to a new fingerprint system with an expanded database. The new system matched Jackson with prints lifted from a beer can and a glass tumbler in Henderson’s bedroom. A bloody print found on Henderson’s bedroom door also matched Jackson. An HPD serologist testified that type-B blood was found on a bedroom door. Jackson is blood-type B; both victims were blood-type A. Police found no other identifiable blood type sample at the crime scene. A DNA expert testified that Jackson’s DNA profile matched DNA from stains on a red towel and a beige towel located in Henderson’s bathroom.

David Trujillo, who lived next door to Henderson and Wrotenberry, told police that around 10:30 p.m. on September 10, 1988, he heard music and Henderson’s voice through the common wall separating their apartments. Trujillo went to sleep around 2 a.m. and was awakened at 4:45 a.m. by the sound of Wrotenberry screaming “Oh my God. No. No,” several times. Trujillo also heard what sounded like someone being hit numerous times with a pipe or baseball bat. After 30 minutes of silence, he heard the water running for about 45 minutes. Trujillo never heard Henderson’s front door open or anyone leave.

THE PENALTY PHASE EVIDENCE

The State presented evidence that Jackson snatched a woman’s purse in 1990. The State also presented evidence that Jackson robbed two other victims of their purses at gunpoint, and attempted to steal a car.

PROCEDURAL HISTORY

6/19/97 -- Jackson was indicted for capital murder by a Harris County grand jury.
3/12/98 – A jury found Jackson guilty of capital murder.
3/17/98 – After a separate penalty hearing, Jackson was sentenced to death.
5/17/00 – The Texas Court of Criminal Appeals affirmed Jackson’s verdict and sentence.
1/6/00 – Jackson filed a state application for a writ of habeas corpus.
12/1/04 – The Texas Court of Criminal Appeals affirmed the denial of habeas relief.
11/30/05 – Jackson filed a petition for writ of habeas corpus in U.S. district court.
2/12/07 – The district court granted the state’s motion for summary judgment and denied relief.
3/9/07 – Jackson appealed to the United States Court of Appeals for the Fifth Circuit.
2/14/08 – The U.S. Fifth Circuit Court of Appeals affirmed.
5/23/08 – Jackson filed a petition for a writ of certiorari in the U.S. Supreme Court.
10/6/08 – The Supreme Court denied Jackson’s petition for a writ of certiorari.
10/28/08 – Jackson filed a Rule 60(b) motion in the federal district court.
3/31/09 – Th federal district court denied Jackson’s Rule 60(b) motion.
4/13/09 – Jackson appealed the denial of his Rule 60(b) motion.
10/9/09 – The Fifth Circuit affirmed the denial of Jackson’s Rule 60(b) motion.
7/20/10 – Jackson is set to be executed on this date.

Texas Execution Information Center by David Carson.

Derrick Leon Jackson, 42, was executed by lethal injection on 20 July 2010 in Huntsville, Texas for the murder of two men in their apartment.

On Monday, 12 September 1988, Alan Wrotenbery, 31, failed to appear for his job as a music teacher at Deer Park Elementary School in east Harris County. The school principal contacted the manager of the Greenway Plaza-area apartments in central Houston where Wrotenbery lived. The manager unlocked the apartment and went inside. He saw nothing disturbed in the living room or kitchen, but upon proceeding to one of the bedrooms, he found a body covered with blood. He promptly left and called 9-1-1.

Police officers arrived and found Wrotenbery's body on the floor of his bedroom. He was wearing only a pair of swimming trunks. In the other bedroom, officers found the nude body of his roommate, Forrest Henderson, 31, lying face-down in his bed. Blood was all over the bedroom walls, doors, and curtains. Police found a bloody metal bar in the hallway and a bloody knife in the kitchen sink. Both victims' wallets were missing, and Henderson's car was gone. There were no signs of forced entry into the apartment.

A forensic pathologist testified that Alan Wrotenbery suffered a severed carotid artery, cuts to the vertebrae, and at least three blows to the back of the head with a narrow, blunt instrument, such as a pipe. Forrest Henderson had a six-inch skull fracture caused by blunt force, and multiple stab wounds on his torso. He also had a shallow, non-fatal cut on his neck and defensive wounds on both arms. The victims had been dead for more than eight hours before they were found.

Police collected blood samples and fingerprints from the crime scene, including a fingerprint from a glass tumbler in Henderson's bedroom and a bloody print found on his bedroom door. They also picked up a DNA sample from blood stains on some bathroom towels. Despite this evidence, they were unable to develop leads to a suspect.

David Trujillo, who lived next door to the victims, told police that at around 4:45 a.m. on 11 September, he was awakened by the sound of Wrotenbery screaming "Oh my God. No. No." several times. He also heard what sounded like someone being hit numerous times with a pipe or baseball bat. After 30 minutes of silence, he heard the water running for about 45 minutes. Trujillo never heard Henderson's front door open or anyone leave. Trujillo later testified that he often saw "street trash" entering and leaving the apartment when Henderson lived there alone, and that screaming and fighting were common there. The rowdiness subsided after Wrotenbery moved in, he said.

On the morning of 13 September, Houston police spotted a car going more than 90 mph on the freeway following a burglary at a mall. The car crashed in a vacant lot. The driver fled on foot into an apartment complex and escaped. The car was identified as Henderson's. No other evidence was recovered from it.

In 1995, the Houston Police Department upgraded to a new fingerprint system with an expanded database. Using this new system, they obtained a match with Derrick Jackson, who was sent to prison in 1992 with a 12-year sentence for aggravated robbery with a deadly weapon. Following this identification, police also matched the blood and DNA evidence from the crime scene to Jackson.

On the night of the murders, Henderson and Wrotenbery, who were both tenors in the Houston Grand Opera, attended a practice session downtown. Afterward, Wrotenbery returned to the apartment while Henderson visited some Montrose bars. Police claimed that Henderson picked up Jackson in a bar and brought him home. They characterized Jackson as a predator who targeted gay men.

A jury convicted Jackson of capital murder in March 1998 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in May 2000. All of his subsequent appeals in state and federal court were denied.

Jackson denied involvement in the murders in an interview from death row. "It's obvious I'm getting framed," he said. "I'm not your bad guy. People who know me know I'm a good guy ... I hate the fact that I'm being blamed and will be killed, but it's more sadness than hate."

At his execution, Jackson did not make eye contact either with his own family or the victim's relatives. He declined to make a last statement. The lethal injection was given, and he was pronounced dead at 6:20 p.m.

Houston Chronicle

"Man executed for deaths of 2 Houston opera singers," by Michael Graczyk. (AP July 20, 2010)

HUNTSVILLE, Texas — A man who maintained he was unfairly convicted of the 1988 slayings of two Houston opera singers was executed Tuesday evening. Derrick Jackson, 42, was put to death for the fatal beatings and slashings of Forrest Henderson and Richard Wrotenbery. The two 31-year-old men were in the Houston Grand Opera chorus.

Their September 1988 slayings inside Henderson's apartment went unsolved for years until a bloody fingerprint from the murder scene was matched to Jackson. By then, in 1995, Jackson already was in prison serving a 12-year term for aggravated robbery.

Jackson said nothing when the warden asked if he would like to make a final statement. He never moved, staring at the ceiling of the death chamber, as the lethal drugs began, then gasped several times as they took effect. Eight minutes later, at 6:20 p.m. CDT, he was pronounced dead.

Jackson's father, who wept quietly, and two brothers were among people watching the execution. Carl Wrotenbery, the father of one of his victims, was in an adjacent witness room. No last-day appeals were made to the courts Tuesday to try to block the 15th lethal injection this year in Texas, the nation's most active death penalty state. The Texas Court of Criminal Appeals rejected an appeal Monday, and the Texas Board of Pardons and Paroles turned down a clemency request.

In a recent interview from death row, Jackson told The Associated Press he didn't want to die but wasn't scared. "It's more a reluctance that it had to come to this," he said. "It's like you have terminal disease for a number of years and finally they say you're not going to be able to live with it any longer so you're going to have to get your affairs together with your family and within yourself."

Jackson was arrested in 1992 for three robberies and took a plea bargain that sent him to prison. He was there when detectives working cold cases and using new computer databases matched his fingerprint to one at the scene of the murders.

Jackson said bad decisions led to burglaries and robberies and ultimately the prison term, but he denied involvement in the killings. Fingerprints on a beer can, a glass and a door knob were linked to Jackson. Stains on bathroom towels matched his DNA. "Technology caught up with him," said Bill Hawkins, a Harris County district attorney who prosecuted the case. Hawkins said the odds against the DNA match actually belonging to someone other than Jackson were "off the charts."

Richard Wrotenbery also taught music at an elementary school in the Houston suburb of Deer Park. He'd been house-sitting at Henderson's apartment following a divorce until he could find a place of his own. Henderson had just returned to Houston after performing with the opera in Scotland. The day of the slayings, Sept. 10, 1988, Wrotenbery and Henderson, both tenors, had been rehearsing for an opera production of Bizet's Carmen. Wrotenbery went to the apartment after rehearsals. Jackson hit some bars, may have met Jackson there and took him home.

Evidence showed Henderson was stabbed in the chest. Wrotenbery's throat was slashed. Both were bludgeoned with a heavy metal bar that could have been part of a weight set. Wrotenbery may have been asleep when he was killed.

"I'm relieved that it's over," Carl Wrotenbery, 80, said after watching his son's killer die. "It's something that had to be done. I did not look forward to it." He said he came to Huntsville from his home in Fort Worth, about 175 miles away, out a "sense of duty and responsibility" to his family and that he found Jackson's silence at the end "disappointing" but not unexpected. "I didn't expect any pleasure and I certainly didn't receive any," Wrotenbery said.

Jackson said from prison he realized "two people lost their lives and I feel for their families." "I saw the pictures. It was a savage scene," he said, adding that he understood jurors had to "do something when two guys were killed like that." But when they found him guilty, "It kind of blew me away," he said. "I didn't do it."

The men's wallets were taken along with Henderson's car. A Houston traffic officer tried to pull over the car for speeding, but the driver fled, leading police on a chase until the car crashed. The driver managed to run off and escape. An administrator from the school district where Wrotenbery taught called the apartment manager when the teacher didn't show up for work. The manager found the bloody scene.

At least three other condemned killers in Texas have execution dates in the coming months.

Huntsville Item

"Man executed for deaths of 2 Houston opera singers," by Michael Graczyk. (AP July 20, 2010)

HUNTSVILLE, Texas — A man who maintained he was unfairly convicted of the 1988 slayings of two Houston opera singers was executed Tuesday evening. Derrick Jackson, 42, was put to death for the fatal beatings and slashings of Forrest Henderson and Richard Wrotenbery. The two 31-year-old men were in the Houston Grand Opera chorus.

Their September 1988 slayings inside Henderson's apartment went unsolved for years until a bloody fingerprint from the murder scene was matched to Jackson. By then, in 1995, Jackson already was in prison serving a 12-year term for aggravated robbery.

Jackson said nothing when the warden asked if he would like to make a final statement. He never moved, staring at the ceiling of the death chamber, as the lethal drugs began, then gasped several times as they took effect. Eight minutes later, at 6:20 p.m. CDT, he was pronounced dead.

Jackson's father, who wept quietly, and two brothers were among people watching the execution. Carl Wrotenbery, the father of one of his victims, was in an adjacent witness room. No last-day appeals were made to the courts Tuesday to try to block the 15th lethal injection this year in Texas, the nation's most active death penalty state. The Texas Court of Criminal Appeals rejected an appeal Monday, and the Texas Board of Pardons and Paroles turned down a clemency request.

In a recent interview from death row, Jackson told The Associated Press he didn't want to die but wasn't scared. "It's more a reluctance that it had to come to this," he said. "It's like you have terminal disease for a number of years and finally they say you're not going to be able to live with it any longer so you're going to have to get your affairs together with your family and within yourself."

Jackson was arrested in 1992 for three robberies and took a plea bargain that sent him to prison. He was there when detectives working cold cases and using new computer databases matched his fingerprint to one at the scene of the murders.

Jackson said bad decisions led to burglaries and robberies and ultimately the prison term, but he denied involvement in the killings. Fingerprints on a beer can, a glass and a door knob were linked to Jackson. Stains on bathroom towels matched his DNA. "Technology caught up with him," said Bill Hawkins, a Harris County district attorney who prosecuted the case. Hawkins said the odds against the DNA match actually belonging to someone other than Jackson were "off the charts."

Richard Wrotenbery also taught music at an elementary school in the Houston suburb of Deer Park. He'd been house-sitting at Henderson's apartment following a divorce until he could find a place of his own. Henderson had just returned to Houston after performing with the opera in Scotland. The day of the slayings, Sept. 10, 1988, Wrotenbery and Henderson, both tenors, had been rehearsing for an opera production of Bizet's Carmen. Wrotenbery went to the apartment after rehearsals. Jackson hit some bars, may have met Jackson there and took him home.

Evidence showed Henderson was stabbed in the chest. Wrotenbery's throat was slashed. Both were bludgeoned with a heavy metal bar that could have been part of a weight set. Wrotenbery may have been asleep when he was killed.

"I'm relieved that it's over," Carl Wrotenbery, 80, said after watching his son's killer die. "It's something that had to be done. I did not look forward to it." He said he came to Huntsville from his home in Fort Worth, about 175 miles away, out a "sense of duty and responsibility" to his family and that he found Jackson's silence at the end "disappointing" but not unexpected. "I didn't expect any pleasure and I certainly didn't receive any," Wrotenbery said.

Jackson said from prison he realized "two people lost their lives and I feel for their families." "I saw the pictures. It was a savage scene," he said, adding that he understood jurors had to "do something when two guys were killed like that." But when they found him guilty, "It kind of blew me away," he said. "I didn't do it."

The men's wallets were taken along with Henderson's car. A Houston traffic officer tried to pull over the car for speeding, but the driver fled, leading police on a chase until the car crashed. The driver managed to run off and escape. An administrator from the school district where Wrotenbery taught called the apartment manager when the teacher didn't show up for work. The manager found the bloody scene.

At least three other condemned killers in Texas have execution dates in the coming months.

ProDeathPenalty.Com

Forrest Henderson and Richard Wrotenbury, were singers in the Houston Grand Opera. Shortly before his death, Henderson toured with the opera in Scotland. Wrotenbury moved into Henderson's Houston apartment to house-sit while Henderson was out of the country and continued to live in the apartment after Henderson returned.

David Trujillo and Roger Lindgroff lived next door to Henderson and Wrotenbury. At around 10:30 p.m. on September 10, 1988, Trujillo heard music and Henderson's voice through the common wall separating their apartments. Trujillo went to sleep around 2:00 a.m. and was awakened at 4:45 a.m. by the sound of Wrotenbury screaming several times, "Oh my God. No. No." Trujillo also heard what sounded like someone being hit numerous times with a pipe or a baseball bat. After 30 minutes of silence, he heard the water running for about 45 minutes. Lindgroff started to knock on their neighbor's door to see if there was a problem, but Trujillo called him back inside. Lindgroff did not testify because he was deceased at the time of trial. Trujillo never heard Henderson's front door open or anyone leave. A person could enter or leave Henderson's apartment via a separate stairwell, however, without having to pass by Trujillo's door. Trujillo explained that, before Wrotenbury moved in, he would see "street trash" going in and out of Henderson's apartment, that the apartment was a rowdy place, and that there was always some kind of screaming and fighting going on over there. Since Wrotenbury had moved in, however, the rowdiness had subsided.

Besides the opera, Wrotenbury also worked as a music teacher at Deer Park Elementary School; but on Monday, September 12, 1988, he failed to appear for work. At 9:00 a.m., the school principal contacted Henderson's apartment manager to check on him. The manager unlocked Henderson's apartment door and found nothing disturbed in the living room and kitchen. He proceeded to one of the bedrooms, pushed open the door, and saw a body covered with blood. He promptly left and called 911.

Police officers arrived at the apartment soon thereafter and detected no signs of forced entry. They found Henderson's and Wrotenbury's bodies in their respective bedrooms at opposite ends of the apartment. Henderson's nude body was lying face-down in his bed, and Wrotenbury's body, clad only a pair of swimming trunks, was lying on the floor of his bedroom. Absence of significant blood in the hallway connecting the two bedrooms indicated that neither victim left his room during or after the attacks. Police found a bloody metal bar in the hallway and a bloody knife in the kitchen sink. Blood was all over the bedroom walls, doors, and curtains. Both victims' wallets were missing, and Henderson's car was gone.

Henderson's car was involved in a burglary of a Montgomery Wards store two to three days later. Police engaged in a high speed chase with the perpetrators, who wrecked the car and fled before police could catch them.

The forensic pathologist testified that Alan Wrotenbury suffered a severed carotid artery, cuts to the vertebrae, and at least three blows to the back of the head with a narrow blunt instrument consistent with a pipe. The force of one of the blows Wrotenbury received knocked out a tooth. Forrest Henderson had received a shallow, non-fatal cut to the neck, defensive wounds on both arms, a six-inch fracture of the skull from a blunt force, and multiple stab wounds to the torso. Fixed lividity in both bodies signified that both people had been dead for more than eight hours.

Tests performed on both victims revealed no signs of drugs, alcohol, or semen. Blood samples and 20 identifiable fingerprints were collected from the crime scene, but the Houston Police Department was unable to develop a suspect. In 1995, HPD upgraded to a new fingerprint system with an expanded database. The new system matched Jackson with prints lifted from a beer can and a glass tumbler in Henderson's bedroom. A bloody print found on Henderson's bedroom door also matched Jackson. An expert in blood-spatter interpretation testified that the bloody fingerprint could have been formed only by touching a blood drop while the blood was still wet--as opposed to a blood drop landing on an old fingerprint. An HPD serologist testified that type-B blood was found on a bedroom door. Jackson is blood-type B; both victims were blood-type A. Only these blood types were detected at the crime scene. The State's DNA expert testified that Jackson's DNA profile matched DNA isolated from blood stains on a red towel and a beige towel located in Henderson's bathroom. The odds that another African-American would possess the same profile is one in 7.2 million. Further, DNA analysis could not exclude Jackson as a contributor of the blood mixture covering the metal bar.

Canadian Coalition Against the Death Penalty

Derrick Leon Jackson
Texas Death Row

ACTIONS AND RE-ACTIONS - By Derrick Jackson
" I’ve been inspired to write Actions and Re-actions by Roy Pippin and Paul Colella." By Derrick Jackson, Texas death row prisoner writes about the continued abuse suffered by these prisoners.

ACTIONS AND RE-ACTIONS Pt. 2- By Derrick Jackson
Follow up to 'Actions and Re-actions' By Derrick Jackson, writing about the continued abuse.

Visit Derrick's Official Webpage at: http://www.geocities.com/derrickjackson_2000/justice_for_jackson.htm

It's hard to explain (especially here in Texas), but to behonest, I personally would have preferred to have been murdered at thetime of sentencing. I say this, not because I prefer to be dead (Itruly want to live with a passion). I love life, but the appealsprocess is no more than a torturous traumatizing path to a trulysaddenly sick end. I believe in God, and believe me when I say that itwill be an "act of God" if I am ever to be a free man, but I do havehope, and I pray. I am a blessed man to have the insight that I do. Myreality is a sick curse, for each and every individual it's different(being on death row), but all of us are insane. You have to lose a bitof your sanity to maintain the rest of it, like a flu shot. Every day Iaccept the fact that it's OK for me to go just a little bit crazy tokeep from breaking down and losing it completely.I don't have a wife or children, very much family, or many friends, andit may seem strange to hear, but (for me) that's good, because of thetype of person that I am. My existence is a very sick one. Just lastnight I got a visit from my younger brother. I wrote him a letter a fewweeks ago being a bit desperate and demanding.that he come visit. Ipersonally feel he should come every week, but I realize that no oneowes me nothing, and that he has a life to live in a crazy world. Hetold me I should write to my mother, father, step mother, and aunts(most of them have never been to visit me) so that they could feelguilty (I guess he was feeling guilty). I would never try to make aperson feel guilty in this way, especially not those I love, even thoughthey seem to have forgotten about me or maybe just don't know how todeal with seeing me here trapped in a miserable existence. My twoyounger brothers and my mother are all I can consider my family at thispoint in my life. I'm from a poor family, so there is very little(nearly nothing) that they can do financially, but the moral support, nomatter how painful, is my reason for existence. I feel their pain andfrustration, and I can see it in their eyes, but they are all I have,and living daily in solitary confinement cells is another madness that aman must deal with that has nothing to do with the death penalty.Here on the Polunsky unit here in Livingston, Texas, extreme deprivationis used to punish, control, and dehumanize a man. Mental games areplayed by most of the guards (including ranking officers) that aprisoner daily comes in contact with. You no longer have human and /orcivil rights. Personally I've felt as if I am a part of a sickexperiment. To have a healthy conscious mind is a beautiful gift to allhumans, and to use it is a gift to our world. To attempt to take ordestroy this gift is criminal. How can I say being a death rowprisoner? What if I can tell you that I'm not guilty? The fact is, I'mnot!!! Another fact is that I can't prove it, and that's why I amhere! Two people I know nothing of or about were brutally beaten andstabbed to death - that was proven at my trial. Politics' corruption,me being poor, naive, ignorant to the unjust system in Texas is why I amsitting here writing these words and not living as I should be, butmerely existing.I feel that the justice system and society have let me down. Theoppression that is my life, I cannot describe. I won't let it controlme, I can't, so at times, I go a little bit crazy, just so I can cope.I'm a very positive person. I love to see people smile, and wheneverpossible, I will share one. There are definitely times that I willsmile to keep from crying. I feel that everyone deals with or has dealtwith tragedy at some point and time in their lives (these experiencesdefine us individually). Not too many people can choose the way theyleave the face of the earth, and on one lives forever. As I've said, Ilove to live life and to love, but I'm not afraid to die.I have no sense of panic or distress as I sit on death row now. Peopledie daily. Every day takes a positive focus, and I'm going to try to bethe son my parents raised to Love, the brother my brothers have Loved aswe've grown, and the man I am proud to be. I'm going to do this withnot very much more than "sickness" - sickness that is my reality. Isuffer from diabetes and must take two insulin shots daily, but thissickness that is the system is what is taking its toll on me and manyothers who sit on death row.Texas is the execution capital of the world! I'm not able to give youspecifics and statistics (for those who are interested, they are madeknown by other sources). I am writing this to express as well asinform, and I can inform you that Texas is out of control. Anybody(anyday) that is a speaker of acting on the death penalty should bespeaking of and acting on Texas. This is nothing less than mass murdergoing on here!! I know, more than many, of the corrupt, powerful,political structure. Then add the money, and it definitely makes for aseemingly impossible fight to win (for justice), but I see it (Texas) asa big bully picking on kids. Sure one bully can bully one, two, eventhree or more kids, but when or if all the kids come, they the bullyfinds it more reasonable to back off and go away. I basically have nohelp in my situation, and I often will hear people say or get a letterfrom someone advising me to organize - put those who are willing to helpin contact with each other. I pass that advice on to all reading thesewords who are truly sincere. There are probably more groups andorganizations that are not doing what they should or could do to help us(condemned men) in effective ways. A lot is said that sounds good, andmen are being murdered here in Texas so regularly that it's seeminglyacceptable. Prisoners who've had no proper defense during trial,legally retarded men, men that have been set up by aggressive stateprosecutors (that are elevated in the political structure according totheir number of convictions), are being murdered. They are killing menhere that have compelling evidence of innocence - not hearing the validarguments of the accused or convicted. Defense attorneys appointed bythe courts (if they are sincere) are disgracefully underpaid and notallowed the advantage of investigators, etc. to fight for justice. Itis not even required by the Texas courts for the court appointedattorneys to even defend their clients here in Texas now. These are thethings that are causing the deaths of many men here in Texas. It isgoing to take an organized effort by all those who are dedicated andsincere to end this madness in Texas. I won't and can't say whichorganizations (or people) are not dedicated and sincere, but if "youare", it shouldn't be long before "you know"!! No one owes me oranybody who is on death row anything, so I, on behalf of every manfacing the death penalty, thank you for everything that you do inprotest. We here in Texas need focused persistent effective organized measures to be immediately taken, or murder will continue.PLEASE DO SOMETHING TO HELP STOP THE KILLING!!!

Please write me at:Derrick Jackson #999263, Polunsky Unit 3872 FM 350 South Livingston, TX 77351

Justice for Jackson is a non-profit International Campaign to raise support for the legal defense of Derrick Leon Jackson, a young man who was wrongly accused and convicted of a double homicide that took place nearly 10 years prior to his indictment/conviction. Derrick Jackson now sits on Texas Death Row and awaits the appeal process and possibly an execution date.

How did Mr. Jackson end up in this position? According to the states prosecution team “Old Science and New Science”. Not facts but the Texas Judicial Systems version of Science. The truth is that only scientific possibilities and a biased Texas Justice System gone totally out of control is the reason Mr. Jackson has been put in this position.

Here are some facts that may interest you:

- Mr. Jackson is a convicted felon/victim of the Texas war on crime, which has paid his debt to society, but not a murderer.

- Mr. Jackson was charged with this crime 9 years after it was committed due to a computer-automated fingerprint.

- This system revealed that Mr. Jackson’s fingerprint as well as 7 other individuals was possible matches to the one that was left at the scene of the crime.

- That the individual who did this matching testified in open court that Mr. Jackson’s fingerprint was not a positive match to the one left at the scene of the crime.

- That Mr. Johnny Holmes, former District Attorney, Harris County, for the state of Texas, is responsible for 42% of the Texas Death Row population and also responsible for the tragic injustice done to Mr. Jackson and his family.

- Mr. Holmes and those in his jurisdiction (city officials) have been under fire for being guilty of and known for manufacturing evidence such as: evidence tampering, delivery of false reports and testimonies in capital murder trials and death penalty cases. He makes these requests through the states powerful, influential, and aggressive bloodthirsty attorneys appointed to prosecute these cases.

- Such was the case during Mr. Jackson’s trial. An example of this is that an expert witness for the prosecution who testified to Mr. Jackson’s guilt due to the results of her DNA lab work. Minutes later, while being questioned by the defense counsel, she, Mrs. Childs, admitted to falsifying the DNA test results in her reports, and just prior lying to the jurors. When questioned as to why, she answered that it was at the request of her superiors in the attempt to convict Mr. Jackson. She said and I quote “I was just doing my job”

Old Science (fingerprinting), and New Science (DNA). No facts, no witnesses, no concrete evidence, only at best the possibility of circumstantial evidence.

Here are some facts, as well as other issues brought forth in Mr. Jackson’s appeal:

The presiding Judge Burdette, over stepped his boundaries when he expressed his personal opinion to the jury and further more by repeatedly refusing to accept notes from the jury that they were dead-locked and could not agree on a verdict that would eventually send Mr. Jackson to death row. Here is a direct quote from Judge Burdette, “ you are here to do a job. You will do it so come back with a verdict.” He also refused several times, motions from Mr. Jackson’s lawyers requesting a mistrial as the injustices of the trial developed which are as follows”

- The lack of insufficient evidence to prove Mr. Jackson’s guilt. Hard core basic evidence required putting a man on death row.

- The legal constitutionality of the death penalty as it is applied in this case.

- Mr. Jackson’s Constitutional Civil Rights being violated.

Currently Derrick Leon Jackson sits on death row and as of May 26/00 has lost his first appeal. In addition to Mr. Jackson’s legal problems he suffers from a well-known condition called diabetes and is financially unable to provide for himself to maintain his health. Many who read this will find all of this information hard to believe because we as a society have a tendency to brush off distasteful issues such as this. Please I ask that you take the time to read further and consider this:

- Texas has executed more people in the last 4 years than all other states combined in the same amount of time. Are we to believe that their Judicial System is superior to that of everywhere else? So superior that it has no flaws?

- The same judge who has made sure that Mr. Jackson’s place of residence is death row has appointed Mr. Jackson’s appeal attorneys.

- That a Motto of the “Good Old Boys” in Texas is: “We would rather kill 10 innocent men than to let one guilty man live”.

We need your help to save the life of this innocent man as he awaits his fate. A non-profit International Campaign, Justice for Jackson, to raise funds and support for Mr. Jackson. Money is needed to secure proper legal representation. Organizational support is needed to insure a proper legal defense as well as proper up keep for his medical condition. Legal Assistance is needed. We are asking for this support through any donations that can be made so Mr. Jackson’s fate is not left in the hands of those who have already condemned him to die. Mr. Jackson and his family are victims of a blood thirsty, barbaric, biased Justice system that is totally out of control.

If you wish to make an donation in support of this mans legal defense, please do so by way of U.S. postal,or International money orders only, made payable to his mother, Rita Everline, Co Chairperson and treasurer as follows:

Rita Everline #4424
11315 Fondren
Houston, Texas
77035 USA

Please do not send any donations directly to Mr. Jackson at the prison. He will not be allowed to have it. Those interested in offering any organizational, legal, investigative, assistance or advice, or support through way of friendship, see his pen pal requests and contact information below...

DERRICK LEON JACKSON'S PEN PAL REQUEST:

I am a 31 year old black male incarcerated on Texas' death row in Huntsville. I would very much like to correspond with a pen pal in the hopes of building a truly genuine friendship, that I am very much in need of. I would prefer females 25-45, but men are equally welcomed to respond to this letter. Race/ ethnic or religious background are of no concern to me, only that the person responding is open to regular correspondence and building on a true friendship. Now to tell you a little about myself, I am a very easy going open minded person. I am very God fearing and optimistic, and I am a leader by nature. I am a very honest person and those are the types of people I choose to associate myself with. I am from a very small family, and I am the oldest of 3 boys. I am a chef/ cook, and a barber stylist by trade, I am college educated, and very business minded. I am a serious person, but I do have a sense of humor, and i enjoy nothing more than to see a person smile. I am a people person, but I mostly enjoy interaction with females on all levels. My interests are basic, although I do enjoy the finer things in life, the simple things are just as important to me. I like mostly all sports, basketball and football are my favorites. I'm interested in mostly all kinds of music and music videos. I like good movies, mostly romantic and comedy and I love to read good books and poetry. I enjoy all forms of basic social entertainment. Although I never married and don't have the pleasure of having any of my own, I love children. In closing, I would like to thank you very much for taking the time to read this introductory letter. Please be assured that if you choose to respond, I will be open and totally honest to any inquiry that you may have for me. I hope to hear from you very soon in the hopes of establishing regular correspondence and more importantly, a true friendship.

Houston Chronicle

"Execution set Tuesday in Houston tenors' slayings; Man convicted in brutal killings will be 15th put to death this year," by Allan Turner. (July 19, 2010, 5:49PM)

The scene that greeted police when they entered Forrest Henderson's Greenway Plaza-area apartment on Sept. 11, 1988, was grisly. Blood smeared bedroom walls, doors and curtains. The bodies of Henderson and his house guest, Richard Alan Wrotenbery, had been slashed, stabbed and bludgeoned with an iron pipe. The killer left a bloody handprint on the doorknob. The killings rocked the genteel worlds of Houston Grand Opera, where both men performed as tenors, and Deer Park Elementary School, where Wrotenbery, the recently divorced father of a 1-year-old daughter, taught music.

A day after the murders, police spotted Henderson's stolen car traveling more than 90 mph on a Houston freeway and gave chase. When the vehicle crashed, the driver dashed into a nearby apartment complex to make good his escape.

For seven years the investigation stagnated. Then, in 1995, sheriff's deputies using sophisticated new fingerprint technology linked a bloody print from Henderson's apartment to Derrick Jackson, a Houston man serving 12 years for aggravated robbery. Jackson denied any involvement but was convicted of the double-murder in 1998.

'I'm getting framed'

Jackson is to be executed Tuesday, becoming the 15th killer put to death in Texas this year. Houston lawyers last week were reviewing the case but were uncertain if they would find grounds for further appeals. "It's obvious I'm getting framed," Jackson said in a recent death row interview. "I'm not your bad guy. People who know me know I'm a good guy."

Police described Jackson as a predator who preyed on patrons of Montrose gay bars. The tenors' friends said Wrotenbery lived in his friend's apartment while Henderson was on an overseas tour with the opera. When Henderson returned, the recently divorced Wrotenbery continued to occupy the residence until he could find a home of his own.

Before their murders, the men, both 31, attended a practice session for a performance of Bizet's Carmen at the opera's downtown headquarters. Afterward, Wrotenbery returned to the apartment while Henderson visited local bars. While there, Henderson met Jackson. "He just picked up the wrong person and brought him back to the house," Houston homicide Sgt. D.D. Shirley said after Jackson's arrest.

Henderson's next-door neighbor told police he heard loud music coming from the apartment late on Sept. 10. Then, about 4:45 a.m. the next day, a man in the apartment screamed, "Oh my God. No. No." Henderson's nude body later was found face-down on his bed. He repeatedly had been stabbed and suffered a 6-inch skull fracture. Wrotenbery was found on the floor of a second bedroom with his throat slashed.

Wrotenbery's father, Carl Wrotenbery of Fort Worth, said the impact of his son's death will "go with me to my grave." The elder Wrotenbery, a retired library director at Fort Worth's Southwestern Baptist Theological Seminary, said he is ambivalent about capital punishment. "When you come to the personal aspect of it, pure logic says for someone to do a crime of this nature, unprovoked — Alan was in the wrong place at the wrong time - it's hard for me to think the death penalty is unjustified."

Wrotenbery said he plans to witness the execution. "I've made my reservation," he said. "I feel like it's my duty as a father and head of the clan. I feel a responsibility to be there and see this done for other family members who, though they may have strong feelings, won't be able. I have no real desire to be there. I don't expect to feel anything different. It's just an unpleasant duty." Wrotenbery said the case, marked by false investigative starts and long delays, was hard on his family.

Crime-lab problems

Years after Jackson's conviction, the way police handled the case was criticized by Michael Bromwich, the independent investigator hired to review operations of the department's troubled crime lab. In his 2007 report, Brom-wich found that a technician apparently manipulated lab findings to bolster the case against detectives' prime suspect of the moment.

When an early suspect had Type O blood, Bromwich wrote, the employee neglected to report that Type B blood was found on an apartment door. Only when a charge was lodged against Jackson, who has Type B blood, was the fact added to the report.

In his death row interview, Jackson challenged those fingerprint findings and blasted a series of defense lawyers who, he said, "helped me get down to the execution chamber." "I don't stay up at night and have nightmares," Jackson said. "I pray for myself. I hate the fact that I'm being blamed and will be killed, but it's more sadness than hate."

Jackson v. State, 17 S.W.3d 664 (Tex.Crim.App. 2000). (Direct Appeal)

Defendant was convicted in the 230th District Court, Harris County, Robert Burdette, J., of capital murder for murdering two people and was sentenced to death. On automatic direct appeal, the Court of Criminal Appeals, Price, J., held that: (1) fingerprints and DNA evidence was sufficient to convict; (2) victims were killed during same criminal transaction, as required to convict of capital murder; (3) error in admitting DNA evidence without pre-admission hearing was harmless; (4) state's violation of discovery order requiring timely disclosure of all scientific testing did not require that evidence be withheld from trial; (5) prosecutor‘s arguments during rebuttal were not improper reference to defendant's failure to testify; and (6) mistrial was not required after jury had indicated that it had deadlocked. Affirmed. Mansfield, J., concurred specially.

Appellant was convicted of capital murder on March 12, 1998. tex. Penal Code Ann. § 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure article 37.0711 §§ 3(b) and (e), the trial judge sentenced appellant to death. Art. 37.071 § 3(g). FN1 Direct appeal to this Court is automatic. Art. 37.0711 § 3(j). Appellant raises eight points of error. We will affirm. FN1. Unless otherwise indicated, all future references to Articles refer to Code of Criminal Procedure.

SUFFICIENCY OF THE EVIDENCE

In his first two points of error, appellant challenges the legal sufficiency of the evidence to support his capital murder conviction for killing more than one person in the same criminal transaction. We review the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The evidence at trial revealed that the victims, Forrest Henderson and Richard Wrotenbury, were singers in the Houston Grand Opera. Shortly before his death, Henderson toured with the opera in Scotland. Wrotenbury moved into Henderson's Houston apartment to housesit while Henderson was out of the country and continued to live in the apartment after Henderson returned.

David Trujillo and Roger Lindgroff FN2 lived next door to Henderson and Wrotenbury. At around 10:30 p.m. on September 10, 1988, Trujillo heard music and Henderson's voice through the common wall separating their apartments. Trujillo went to sleep around 2:00 a.m. and was awakened at 4:45 a.m. by the sound of Wrotenbury screaming several times, “Oh my God. No. No.” Trujillo also heard what sounded like someone being hit numerous times with a pipe or a baseball bat. After 30 minutes of silence, he heard the water running for about 45 minutes. Lindgroff started to knock on their neighbor's door to see if there was a problem, but Trujillo called him back inside. Trujillo never heard Henderson's front door open or anyone leave. A person could enter or leave Henderson's apartment via a separate stairwell, however, without having to pass by Trujillo's door. FN2. Lindgroff was deceased at the time of trial.

Trujillo explained that, before Wrotenbury moved in, he would see “street trash” going in and out of Henderson's apartment, that the apartment was a rowdy place, and that there was always some kind of screaming and fighting going on over there. Since Wrotenbury had moved in, however, the rowdiness had subsided.

Besides the opera, Wrotenbury also worked as a music teacher at Deer Park Elementary School; but on Monday, September 12, 1988, he failed to appear for work At 9:00 a.m., the school principal contacted Henderson's apartment manager to check on him. The manager unlocked Henderson's apartment door and found nothing disturbed in the living room and kitchen. He proceeded to one of the bedrooms, pushed open the door, and saw a body covered with blood. He promptly left and called 911.

Police officers arrived at the apartment soon thereafter and detected no signs of forced entry. They found Henderson's and Wrotenbury's bodies in their respective bedrooms at opposite ends of the apartment. Henderson's nude body was lying face-down in his bed, and Wrotenbury's body, clad only a pair of swimming trunks, was lying on the floor of his bedroom. Absence of significant blood in the hallway connecting the two bedrooms indicated that neither victim left his room during or after the attacks. Police found a bloody metal bar in the hallway and a bloody knife in the kitchen sink. Blood was all over the bedroom walls, doors, and curtains. Both victims' wallets were missing, and Henderson's car was gone. FN3. Henderson's car was involved in a burglary of a Montgomery Ward two to three days later. Police engaged in a high speed chase with the perpetrators, who wrecked the car and fled before police could catch them.

The forensic pathologist testified that Alan Wrotenbury suffered a severed carotid artery, cuts to the vertebrae, and at least three blows to the back of the head with a narrow blunt instrument consistent with a pipe. The force of one of the blows Wrotenbury received knocked out a tooth. Forrest Henderson had received a shallow, non-fatal cut to the neck, defensive wounds on both arms, a six-inch fracture of the skull from a blunt force, and multiple stab wounds to the torso. Fixed lividity in both bodies signified that both people had been dead for more than eight hours. Tests performed on both victims revealed no signs of drugs, alcohol, or semen.

Blood samples and 20 identifiable fingerprints were collected from the crime scene, but the Houston Police Department (“HPD”) was unable to develop a suspect. In 1995, HPD upgraded to a new fingerprint system with an expanded database. The new system matched appellant with prints lifted from a beer can and a glass tumbler in Henderson's bedroom. A bloody print found on Henderson's bedroom door also matched appellant. An expert in blood-spatter interpretation testified that the bloody fingerprint could have been formed only by touching a blood drop while the blood was still wet-as opposed to a blood drop landing on an old fingerprint.

An HPD serologist testified that type-B blood was found on a bedroom door. Appellant is blood-type B; both victims were blood-type A. Only these blood types were detected at the crime scene. The State's DNA expert testified that appellant's DNA profile matched DNA isolated from blood stains on a red towel and a beige towel located in Henderson's bathroom. The odds that another African-American would possess the same profile is one in 7.2 million. Further, DNA analysis could not exclude appellant as a contributor of the blood mixture covering the metal bar.

In reviewing the sufficiency of the evidence, we must view 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 offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781. Although our evaluation considers all evidence presented at trial, Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App.1998), we may not re-weigh the evidence and substitute our judgment for that of the jury. Wilson v. State, 863 S.W.2d 59, 65 (Tex.Crim.App.1993).

In his first point of error, appellant alleges that the fingerprint and DNA evidence does not establish him as the perpetrator because he could have left prints on the beer can and tumbler before the killings. Appellant further contends that he could have reentered the apartment after the killings to leave the bloody fingerprint on the door and his own blood on the bathroom towels. Appellant's scenario does not establish that the evidence presented at trial was insufficient to support the jury's verdict.

Appellant's bloody fingerprint puts him in the apartment while the blood was still wet. Further, the discovery of blood consistent with appellant's DNA profile on the towels and on the bloody bar leads to the reasonable conclusion that appellant was injured during the struggle with one or both of the victims. Thus, the evidence is legally sufficient to find that appellant killed Wrotenbury and Henderson. Point of error one is overruled.

In his second point of error, appellant argues that the evidence is insufficient to establish that Henderson and Wrotenbury were killed during the course of the same criminal transaction. As support for this allegation, appellant relies on the testimony of (1) Trujillo that he did not hear Henderson's voice after 10:30 p.m. and heard only Wrotenbury struggling several hours later and (2) the medical examiner that he could not pinpoint the time of death of either victim. Appellant argues that someone could have entered the apartment through the private staircase, killed Henderson, left the apartment, reentered the apartment, and killed Wrotenbury. FN4. In keeping with this argument, appellant must have entered the apartment after all of this activity, left a bloody fingerprint on the bedroom door, cut himself, wiped his wound on the bathroom towels, locked the door, and left.

To convict appellant of capital murder, the jury in this case was required to find that appellant intentionally caused the death of two individuals, Forrest Henderson and Alan Wrotenbury, “during the same criminal transaction.” tex. Penal Code § 19.03(a)(6)(A) (Vernon Supp.1988). Because the legislature did not define the term “same criminal transaction,” we have interpreted that phrase to mean “a continuous and uninterrupted chain of conduct occurring over a very short period of time ... in a rapid sequence of unbroken events.” Rios v. State, 846 S.W.2d 310, 311-312 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1051, 113 S.Ct. 1946, 123 L.Ed.2d 651(1993); Vuong v. State, 830 S.W.2d 929, 941 (Tex.Crim.App.1992), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992).

Here, both victims were killed in the same manner with the same weapons and were found dead in the same apartment. Although the medical examiner testified that only Henderson's body showed signs of decomposition, he maintained that he could not determine who was killed first. He explained that Henderson's struggle with the assailant could have caused increased secretion of acid in his system, thus accelerating decomposition. Based on our review of the record, we find that “the jury could rationally conclude appellant engaged in a continuous and uninterrupted process, over a short period of time, of carrying on or carrying out murder of more than one person.” Rios, 846 S.W.2d at 314. Appellant's second point of error is overruled.

SCIENTIFIC EVIDENCE

In his third point of error, appellant complains that the trial court denied him a hearing under Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992) and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), after he challenged the reliability of the State's DNA evidence. Specifically, appellant requested the court to determine whether “the DNA was collected and tested properly pursuant to accepted protocols, subjected to peer reviews, and properly calculated.” Appellant further points out that at trial he “also expressed concern over the match windows used in connection with RFLP FN5 DNA testing conducted by the state.”

FN5. Two types of DNA analysis were utilized in this case-PCR and RFLP. “PCR,” stands for “polymerase chain reaction,” a method of multiplying DNA so that a profile can be obtained from a very small sample. “RFLP” stands for “restriction fragment length polymorphism,”a method of DNA analysis that produces a more discriminating profile but requires a larger DNA sample. See, e.g., Campbell v. State, 910 S.W.2d 475, 479 n. 6 (Tex.Crim.App.1995).

We have stated numerous times that a trial court's responsibility under Texas Rule of Criminal Evidence 702 is to determine whether proffered scientific evidence is sufficiently reliable and relevant to assist the jury.FN6 See, e.g., Kelly, 824 S.W.2d at 573; Jordan v. State, 928 S.W.2d 550, 554-55 (Tex.Crim.App.1996). The proponent of the scientific evidence bears the burden of demonstrating by clear and convincing evidence that the evidence is reliable. This is accomplished by showing: (1) the validity of the underlying scientific theory; (2) the validity of the technique applying the theory; and (3) proper application of the technique on the occasion in question. Kelly, 824 S.W.2d at 573. We have emphasized that, before scientific evidence may be admitted, the trial court must conduct a hearing outside the presence of the jury to determine whether the proponent has established all three criteria. Id; Massey v. State, 933 S.W.2d 141, 152 (Tex.Crim.App.1996); Campbell v. State, 910 S.W.2d 475, 478-79 (Tex.Crim.App.1995), cert. denied, 517 U.S. 1140, 116 S.Ct. 1430, 134 L.Ed.2d 552 (1996). This pre-admission determination is required whether the science at issue is novel or well established. Hartman v. State, 946 S.W.2d 60, 63 (Tex.Crim.App.1997); cf. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174, 143 L.Ed.2d 238 (1999) (holding that trial court's “gatekeeping” function under Federal Rule of Evidence 702 applies to all expert testimony-not just scientific testimony).

FN6. The Texas Rules of Evidence (formed from the combined civil and criminal rules of evidence) became effective on March 1, 1998.

In this case, defense counsel agreed to the general validity of DNA evidence under the first prong of Kelly but challenged the validity and application of the technique, under the second and third prongs of Kelly, used to identify appellant as a suspect. Before the State presented its DNA evidence, the court heard arguments from the State and appellant debating the reliability of the State's evidence. Emphasizing that DNA evidence is based on a conceptually valid theory, the court informed the parties that it was not required under Daubert and Kelly to conduct a pre-admission hearing to determine whether HPD's techniques were valid and properly performed in this case. The court interpreted the second two Kelly prongs as matters for the jury to decide: [N]or am I persuaded that it is necessary for me to have a hearing to determine the specific manner and means in which collections occur, evaluations are conducted. Certainly, that is permissible for you to present to a jury for the purposes of refuting whatever it is that the State claims. But it is not the matter of a subjective pre-trial hearing for the purposes of suppressing it because if there is a dispute, the resolution of the dispute must be done by the jury based on the credibility of the witnesses.

The defense then requested to call its expert to discuss the State's DNA evidence: I'm going to call Dr. Elizabeth Johnson and I'm going to ask her, specifically, based on the evidence given to us under the discovery orders, are there some specific protocols that are either miscalculated regarding the match windows and are those subject to peer review. And, specifically, I'm going to ask her under the RFLP protocol, some specific questions regarding our discovery and our evidence that was given to us of the specific problems. And then under the PCR, are there some specific problems. And that will be it.

Before defense counsel could pursue these issues, however, the court intervened to question the defense's expert when she took the stand: THE COURT: Dr. Johnson, have you seen or had a chance to read whatever information [defense counsel] has supplied to you regarding this stuff? THE WITNESS: Yes, I have. THE COURT: From what you have seen, can you specifically say that there was anything done in terms of the collection, the keeping, the analysis, the conclusions, can you say from what you have, specifically, that there was any conduct that was incompatible with what you would say to be the ordinary accepted standards? THE WITNESS: Yes, I can. THE COURT: And what is that? * * * THE WITNESS: Based on what I have seen from the protocol supplied by the Houston Police Department, there are areas that I need clarification on. THE COURT: Okay. Your answer is no. Your request for a hearing is overruled. Thank you ma‘am. The defense pressed on for a hearing on the second two Kelly prongs: This is our request. That it requires a hearing outside the presence of the jury to determine whether the technique protocols used by the HPD lab in this case meet those standards, whether those standards that they used are subject to peer review and is there a problem with those. ... [W]e're asking for the right to make this record regarding just specifically what we would have been asking you before we even get to the jury.

* * *

THE COURT: You have told me so far that you know of no specific situation that exists in terms of the collection, the retention and so on and so forth of the evidence about which you have a dispute. You simply want to satisfy yourself that the methods used were, in fact, consistent with the scientific standards. The court went on to explain that its reason for cutting off Dr. Johnson was her response that she needed some clarification about HPD procedures: “[w]ell, that tells me that there is no dispute. She doesn't know enough and that this is investigatory as opposed to anything else.” Counsel repeated that the defense had a specific dispute with HPD protocols and relayed specific concerns that Dr. Johnson expressed to him concerning the “match windows” used by HPD. Based on this discussion, the court concluded: I'll let you present whatever rebuttal evidence, impeachment evidence you care to the jury. In terms of an out-of-the-presence hearing, I'm not going to do it.... But please don't misinterpret what I'm saying to be a refusal or an imposition of you being permitted to present this information to the jury. I'm specifically saying I'm not doing that.

The trial court's ruling deviated from Kelly and its progeny in two respects. First, it presumed that DNA evidence is admissible in general and shifted to the defense the burden of demonstrating that the State's evidence was not reliable. Further, it refused to permit a hearing outside the jury's presence to determine whether the evidence was admissible. Thus, the court erred in failing to determine the admissibility under Rule 702 by interpreting the second and third Kelly requirements as issues that the jury could consider in deciding what weight to give the State's evidence.

Although we agree with appellant that the court abandoned its “gatekeeping” function with respect to the last two Kelly requirements, we hold that in this case the error was harmless because the State's DNA evidence was in fact reliable. Appellant urges that on cross-examination trial counsel undermined the State's DNA evidence by revealing that the State did not use “reagent blanks to eliminate the possibility of cross-contamination” and that the allele, which was isolated from the metal bar and attributed to appellant, was weak and could not be ruled out as a “an ‘artifact’ or nonspecific showing of DNA testing.” FN7 Upon an independent review of the record, we find that the State's DNA evidence was reliable and thus admissible.FN8

FN7. Appellant does not complain now of the match windows, protocol, or statistical analysis used. At trial, the court afforded Dr. Johnson, the defense expert, time to review the DNA type strips and statistical figures that were in the State's possession. Presumably, Johnson was satisfied with these because appellant did not call her to testify before the jury. FN8. We are authorized to conduct a de novo review of this mixed question of law and fact because the admissibility issue does not turn on the credibility and demeanor of the State's witnesses. See Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997).

Mary Childs Henry, a DNA analyst with the Houston Police Department performed the DNA extractions for the PCR and RFLP tests. She testified that she followed the protocol designated by the FBI at that time, which did not require reagent blanks. Although the protocol was later upgraded to include reagent blanks, use of these controls would have violated FBI protocol at the time she performed the tests. She explained that the protocol directed her to work only on one sample at a time to eliminate the possibility of cross-contamination.

Joseph Chu, a serologist with the HPD crime lab, testified that, from the mixture of DNA isolated from the metal bar, he identified an antigen that matched appellant's DNA. He explained that the antigen was weak and could have been only a trace, but maintained that appellant could not be excluded as a source of DNA found on the bar. In Chu's opinion, no cross-contamination or cross-hybridization occurred during the testing process.

Nothing in the trial testimony suggests that HPD serologists used invalid protocols or deviated from the proper protocols. Therefore, we find the State's DNA evidence reliable and admissible under Kelly. Because the court's failure to hold a hearing outside the jury's presence did not result in the admission of unreliable evidence, the error did not have “a substantial and injurious effect or influence in determining the jury's verdict.” King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (announcing the test for determining whether trial error affects a substantial right under Rule of Appellate Procedure 44.2(b) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946))). Accordingly, Rule 103(a) FN9 compels us to disregard this error. Appellant's third point of error is overruled.

FN9. Rule 103(a) provides that”[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.” tex.R. Evid. 103(a).

Appellant contends in his fourth point of error that the trial court should have excluded the State's DNA evidence because the State violated a discovery order which required it to disclose the results of all scientific testing by March 5, 1998. Appellant complains that the State failed to timely turn over new statistical calculations of the frequency that the DNA profile of the blood on the two towels occurs in the population. Instead, the State informed appellant of the recalculations on the evening of March 10, the day before the State began presentation of its DNA evidence. Upon counsel's objection to the tardy disclosure, the trial court asked how much time the defense desired to look over the new calculations. Dr. Johnson, the defense expert, replied, “if they give me the figures and the type results, ... I don't have that material-I would need a[n] hour or two hours to look at it.” The court granted appellant this additional time to review the information before the State presented its statistical evidence.

During the afternoon session of March 11 th, Mary Childs Henry testified that she performed RFLP tests on DNA isolated from a beige and a red towel. The DNA profile of the blood on the towels matched appellant. The original frequency calculation that Henry performed indicated that one in every 5.8 million persons possesses this DNA profile. Henry explained that she used four probes to achieve this original calculation; however, two of the probes violated FBI protocol for inclusion in the frequency analysis. When she recalculated the statistics using only the two compliant probes, she arrived at a significantly different result of one out of 224 persons. FN10. Joseph Chu testified later that the statistical calculation based on the PCR test conducted on this same blood source indicated that the DNA would occur with a frequency of “one out of 7.2 million people among the black population.” Apparently no recalculations were performed on the genetic profile resulting from the PCR analysis.

We have held that evidence willfully withheld from disclosure under a discovery order should be excluded from the trial. See Hollowell v. State, 571 S.W.2d 179, 180 (Tex.Crim.App.1978). There is no indication in the record, however, whether the HPD serologist's failure to recalculate the frequency statistics earlier was done willfully or was merely an oversight. In any event, we have distinguished the harsh sanction imposed by Hollowell, where the State revealed the requested information in time for the defendant to use it on cross examination of the State's witness. See Smith v. State, 779 S.W.2d 417, 431 (Tex.Crim.App.1989)(holding that State's violation of a discovery order to disclose before trial any leniency arrangements with witnesses did not deny defendant a fair trial because the State revealed on direct examination the deal it made with a witness).

Here, appellant does not explain how he was harmed by the State's failure to perform the recalculations earlier. He was afforded ample time for his expert to review the recalculations, and counsel was able to cross-examine the State's witnesses with the new results. Because appellant was in no way prejudiced by the State's failure to comply with the discovery order, we overrule appellant's fourth point of error.

JURY ARGUMENT

Appellant's fifth, sixth, and seventh points of error involve alleged improper jury argument by the State. Proper jury argument includes four areas: (1) summation of the evidence presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the opposing counsel's argument, or (4) a plea for law enforcement. McFarland v. State, 845 S.W.2d 824, 844 (Tex.Crim.App.1992), cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993). To constitute reversible error, the argument must be manifestly improper or inject new, harmful facts into the case. Gaddis v. State, 753 S.W.2d 396 (Tex.Crim.App.1988); Everett v. State, 707 S.W.2d 638, 640 (Tex.Crim.App.1986). Here, we find that each of the challenged passages fits within one or more of the categories enumerated above.

In his fifth point of error, appellant contends that during final rebuttal argument the State impermissibly shifted the burden to the defense. Specifically, appellant complains of the following passage in which the State argued that no defense experts challenged its DNA evidence.

We had two samples from the door. We had a scraping and a swab, one of those is B type ... And don't you know if there was anything wrong-I mean they're accusing Mr. Bolding of lying about his results is what they're doing here. Don't you know if there was anything wrong or improper about those results-and understand, they don't have to do anything. They can sit there like potted plants. But don't you know if there was something wrong, they would have had one of those experts on the stand to tell you that that evidence wasn't B type. And you can make an inference from that. Then you come to the DNA. And it follows here as well. I mean, they haven't had just one, but they've had two experts looking at our DNA evidence. They've had one of them sitting in the courtroom listening to the testimony. Don't you know if there was anything wrong with the results of those samples- FN11. Defense counsel interrupted with an objection that the State was shifting the burden of proof to the defense, and the court overruled the objection.

Our review of the record reveals that the prosecutor's comments were rebuttal to defense counsel's argument attacking the State's scientific evidence. Arguing that the State did not produce reliable evidence that the blood on the wall matched appellant, counsel pointed out that James Bolding, the State's serology expert, waited ten years to conduct the tests revealing type-B blood on the wall. Counsel also implied that the defense DNA expert, who had been sitting at counsel table during the State's presentation of its case, did not approve of the State's DNA evidence; particularly, the dramatic change in the frequency statistics when the two noncompliant probes were eliminated. Counsel continued with arguments attacking the reliability of the PCR testing done on the metal bar, the State's use of improper protocol, and the methods used to extract the DNA.

Defending the State's scientific evidence, the prosecutor retorted that the defense would have called its expert to the stand if it had seriously disputed the State's evidence. Thus, the prosecutor's argument was merely a response to the defense's assertions that the State's scientific evidence was lacking. See McFarland v. State, 989 S.W.2d 749, 751 (Tex.Crim.App.1999). In this context, the challenged comments did not impermissibly shift the burden of proof to the defense, particularly given the prosecutor's repeated reminders to the jury that the defense was not required to present any evidence.

Moreover, the prosecutor's argument did not amount to a prohibited reference to appellant's failure to testify. We have held that the prosecutor may comment on the defendant's failure to produce witnesses and evidence so long as the remark does not fault the defendant for exercising his right not to testify. Patrick v. State, 906 S.W.2d 481, 491 (Tex.Crim.App.1995), cert. denied, 517 U.S. 1106, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996); Livingston v. State, 739 S.W.2d 311, 338 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988). Here, reference to the defense's failure to produce expert testimony was not improper. Appellant's fifth point of error is overruled.

Appellant next asserts that during punishment-phase argument the prosecutor improperly commented on facts outside the record, as follows: But here at punishment it is different. You get to hear more. You get to know the real Derrick Jackson. And you get to take into consideration his victims, the impact on the victims' family and society. You get to look at all that. Now a life sentence to you-you and me would be a lot of punishment. I am going to suggest to you ...

Defense counsel interrupted with an objection that the prosecutor was interjecting his own opinion into the case. The court sustained the objection, instructed the jury to disregard, and ordered the prosecutor to rephrase. The prosecutor continued, “Let's put it this way: A life sentence would be punishment for a lot of people, but not to Derrick Jackson.” Appellant contends that the trial court should have granted his motion for mistrial because the prosecutor's comments about a life sentence “suggested that he has information about the Institutional Division of the Texas Department of Criminal Justice (“TDCJ”) to which the jury was not privy.” FN12 The record does not support this inference.

FN12. Appellant notes that the prosecution possessed information that the jury did not-that appellant would have become parole eligible in fifteen years if given a life sentence. Appellant did not raise this parole issue to the trial court; therefore, he has waived such an argument for appeal. See Johnson v. State, 803 S.W.2d 272, 292 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1078 (1991).

A prosecutor may not convey to the jury during argument that he possesses specialized knowledge or expertise about a contested factual issue in the case. Such comments pose a danger of influencing the jury's opinion in deciding the issue. Johnson v. State, 698 S.W.2d 154, 167 (Tex.Crim.App.1985), cert. denied, 479 U.S. 871, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986); Boyd v. State, 643 S.W.2d 700 (Tex.Crim.App.1983); Maupin v. State, 930 S.W.2d 267, 270 (Tex.App.-Fort Worth 1996, pet. ref'd ). In evaluating whether the prosecutor interjected his personal opinion into the argument, we must consider the challenged remark in the context in which it appears. Gaddis, 753 S.W.2d at 398.

When we evaluate the prosecutor's statements in the appropriate context, it is evident that his remark concerning a life sentence referred to appellant's apparent contentment with the prison environment. The prosecutor began his argument, “Now, this phase of trial, it's the punishment phase. It's not the what's best for Derrick Jackson phase.” He went on to summarize appellant's punishment-phase evidence that appellant performed well in prison, reacted positively to the structured setting, and could accomplish many of his goals there, such as earning a GED. The crux of the argument, therefore, was that prison would not serve to punish appellant. Within this context, it is clear that the prosecutor's statements comparing the punitive effect of a life sentence on appellant to a life sentence on people in general-such as the jurors-was based on appellant's proffered evidence, as opposed to some specialized knowledge harbored by the prosecution. Accordingly, the prosecutor's comments qualify as a permissible plea for law enforcement. Appellant's sixth point of error is overruled.

In his seventh point of error, appellant contends that the prosecutor impermissibly argued facts outside the record and thus misconstrued the testimony of the defense's mental health expert. The challenged portion is as follows: And Dr. Wheeler is tremendously concerned about that kind of individual if they ever got out of the penitentiary. She's testified in 12 capital murder cases for the Defense. And the person that did this scares the hell out of her. And she told you under oath that she would never want a person capable of doing all that on the streets of Harris County, Texas again.

Defense counsel objected that the prosecutor was misstating Dr. Wheeler's testimony. The trial court sustained the objection and instructed the jury to disregard the comment, but denied the defense's motion for mistrial. The prosecutor continued, “She told you that in her opinion that kind of person would be capable of doing all of this again.” The trial court overruled appellant's objection that this comment was outside the record. Appellant asserts that the trial court should have granted his motion for mistrial because the prosecutor impermissibly argued outside the record to undermine the defense's expert witness.

Contrary to appellant's assertion, however, the record reveals that the prosecutor's argument was properly based on the evidence. During the punishment phase, the prosecutor questioned Dr. Wheeler: Doctor, in your professional opinion, you wouldn't want someone that's capable of committing a capital murder where two people are killed like you see in those pictures, stealing a purse from a lady, during an aggravated robbery, they shoot at somebody and then doing three more aggravated robberies [ ... ] a week later within an hour and a half, you wouldn't want somebody like that back on the streets of Harris County, Texas would you?

Dr. Wheeler replied, “No, I would not.” Wheeler also agreed on cross-examination that she would be scared of a person who had just committed these various crimes. Although the prosecutor's characterization of Wheeler's testimony is somewhat overstated, we find that this argument qualifies as a summation of the evidence, and thus is not improper. Appellant's seventh point of error is overruled. FN13. Appellant concedes that this error alone would not constitute reversible error but contends that the statements challenged in points of error five, six, and seven-when considered in combination-deprived him of a fair trial. Finding no error in the prosecutor's argument, we reject appellant's contention.

SENTENCING

In his eighth point of error, appellant complains that the trial court abused its discretion in failing to grant a motion for mistrial when the jury appeared unable to agree on sentencing. At the end of the punishment phase, the jury deliberated for about five hours and sent out a note indicating that they were deadlocked. After the court instructed them to continue their deliberations, they deliberated for another two hours at which time counsel for appellant moved for a mistrial. The court overruled the motion, and the jury recessed for the night. On the following day, the jury had deliberated for an additional four hours when they sent out a note stating, “What happens if we are 11 to 1 on special issue # 3?” The court again instructed them to continue deliberating.FN14 The jury returned a unanimous verdict 28 minutes later.

FN14. Appellant did not reassert his motion for mistrial at this time.

Article 37.0711, § 3(g) compels the trial court to enter a life sentence if the jury is unable to answer any special issue. See Montoya v. State, 810 S.W.2d 160, 166 (Tex.Crim.App.1989), cert. denied, 502 U.S. 961, 112 S.Ct. 426, 116 L.Ed.2d 446 (1991). The court may exercise its discretion to discharge the jury when “it has been kept together for such a time as to render it altogether improbable that it can agree.” Art. 36.31. Reversal is mandated only if the record reveals that the trial court abused its discretion in holding the jury for deliberations. Montoya, 810 S.W.2d at 166. In assessing abuse of discretion, we consider the length of the trial and volume of evidence submitted to the jury. Howard v. State, 941 S.W.2d 102, 121 (Tex.Crim.App.1996). For instance, in Andrade v. State, 700 S.W.2d 585, 589 (Tex.Crim.App.1985), cert. denied, 475 U.S. 1112, 106 S.Ct. 1524, 89 L.Ed.2d 921 (1986), the trial court instructed the jurors to continue deliberations when, after four-and-a-half hours, they indicated that they were deadlocked. The jury persisted with its deliberations for another eight hours before returning an unanimous verdict. Id. Given the nature of the capital case involved, this Court determined that the judge did not abuse his discretion in permitting the jury to deliberate for twelve hours. Id.

Likewise, in this case, the jury was charged with the task of answering questions that determine whether appellant would receive a sentence of life or death. When considering appellant's motion for mistrial, the trial court explained that the guilt/innocence and punishment phases of trial had produced three-and-a-half days worth of evidence. Over this period of time, the jury heard testimony from 27 witnesses for the State and defense. During the punishment phase, the State produced evidence of the numerous violent crimes appellant committed. Appellant countered with testimony from an expert concerning his psychological profile, from his parents that he was generally well behaved, and from his TDCJ barber school teacher that he had adapted well to prison life, was a good student, and had successfully completed 1400 hours of course work. The jury had to sort through this evidence and evidence presented at the guilt/innocence phase to determine whether the mitigating evidence compelled a sentence of life rather than death. See Art. 37.0711 § 3(e). We cannot say, given these circumstances, that the trial court abused its discretion by overruling appellant's motion for mistrial seven hours into deliberations. Appellant's eighth point of error is overruled.

In his final point of error, appellant argues that the trial court should have granted his challenge to the constitutionality of the Texas death penalty scheme based on the “12-10” rule embodied in Article 37.0711, which prohibits the jury from learning that a hung jury on punishment results in a life sentence. See art. 37.0711 §§ 3(d), (f), and (i). He points out that in this case the jury was deadlocked twice during deliberations and had inquired as to the effect of a hung jury. Appellant is correct in his concession that this Court has repeatedly rejected such an attack. See, e.g., Jackson v. State, 992 S.W.2d 469, 481 (Tex.Crim.App.1999); Cantu v. State, 939 S.W.2d 627, 644 (Tex.Crim.App.1997), cert. denied, 522 U.S. 994, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997) ; Green v. State, 912 S.W.2d 189, 194 (Tex.Crim.App.1995), cert. denied, 516 U.S. 1021, 116 S.Ct. 2556, 135 L.Ed.2d 1074 (1996). We overrule appellant's ninth point of error.

Finding no reversible error, we affirm the judgment of the trial court. MANSFIELD, J., concurs in the judgment only on point three, and otherwise joins the opinion.

Jackson v. Quarterman, 265 Fed.Appx. 352 (5th Cir. 2008). (Habeas)

Background: Following affirmance on direct appeal of petitioner's state court capital murder conviction and death sentence, 17 S.W.3d 664, he filed petition for writ of habeas corpus. The United States District Court for the Southern District of Texas, Ewing Werlein, Jr., J., 2007 WL 470643, denied petition. Petitioner sought certificate of appealability (COA).

Holdings: The Court of Appeals held that: (1) evidence was sufficient to support conviction; (2) evidence supported determination that victims were killed during the course of the same transaction; and (3) defense counsel was not ineffective in failing to present certain character witnesses during the sentencing phase. COA denied.

PER CURIAM:

Petitioner, Derrick Leon Jackson, requests a certificate of appealability (“COA”). His request is DENIED.

I. FACTS AND PROCEEDINGS

Jackson, a prisoner sentenced to death and currently in the custody of the Texas Department of Criminal Justice (“TDCJ”), filed this application for a COA after his petition for a writ of habeas corpus was denied by the district court.

The victims, Forrest Henderson and Richard Wrotenberry, were singers in the Houston Grand Opera. Wrotenberry moved into Henderson's Houston apartment to housesit while Henderson was out of the country and continued to live in the apartment after Henderson had returned.

David Trujillo lived next door to Henderson and Wrotenberry. At approximately 10:30 p.m. on Saturday, September 10, 1988, Trujillo heard music and Henderson's voice through the common wall separating their apartments. Trujillo went to sleep around 2:00 a.m. and was awakened at 4:45 a.m. by the sound of Wrotenberry screaming several times, “Oh my God. No. No.” Trujillo also heard what sounded like someone being hit numerous times with a pipe or a baseball bat. After thirty minutes of silence, he heard the water running for about forty-five minutes. Trujillo never heard Henderson's front door open or anyone leave, but a person could enter or leave Henderson's apartment via a separate stairwell without passing by Trujillo's door. Trujillo testified that he often saw “street trash” entering and leaving Henderson's apartment before Wrotenberry moved in, that the apartment was a rowdy place, and that screaming and fighting were common there. The rowdiness subsided after Wrotenberry moved in.

Wrotenberry was a music teacher at Deer Park Elementary School, and on Monday, September 12, 1988, he failed to appear for work. At 9:00 a.m., the school principal contacted Henderson's apartment manager and requested that he check on Wrotenberry. The manager unlocked Henderson's apartment door and found a body covered in blood in one of the bedrooms. He left and called the police.

Police officers arrived at the apartment soon thereafter and detected no sign of forced entry. They found Henderson's and Wrotenberry's bodies in their respective bedrooms at opposite ends of the apartment. Henderson's nude body was lying face-down in his bed, and Wrotenberry's body, clad only in a pair of swimming trunks, was lying on the floor of his bedroom. The absence of significant blood in the hallway connecting the two bedrooms indicated that neither victim left his room during or after the attacks. Police found a bloody metal bar in the hallway in front of the bathroom door and a bloody knife in the kitchen sink. Blood was on the bedroom walls, doors, and curtains. Both victims' wallets were missing, and Henderson's car was gone. Two or three days later, the car was recovered. Following a chase after a burglary at a mall, the car crashed and caught on fire. The driver was not apprehended, and the police recovered no evidence related to the murders from the car.

A forensic pathologist testified that Henderson received a shallow non-fatal cut to the neck, defensive wounds on both arms, a six-inch fracture of the skull from blunt force, and multiple stab wounds to the torso. Wrotenberry suffered a severed carotid artery, cuts to the vertebrae, and at least three blows to the back of the head with a narrow blunt instrument, such as a pipe. Fixed lividity in both bodies signified that the victims were dead for more than eight hours before they were found. Tests performed on both victims revealed no signs of drugs, alcohol, or semen. Blood samples and twenty identifiable fingerprints were collected from the crime scene, but the Houston Police Department (“HPD”) was unable to identify a suspect.

In 1995, nearly seven years after the murders, HPD upgraded to a new fingerprint system with an expanded database. The new system matched Jackson with prints lifted from a beer can and a glass tumbler in Henderson's bedroom. Blood spattered during the attack covered Jackson's fingerprints on the front of the tumbler. A bloody print found on Henderson's bedroom door also matched Jackson's fingerprint. An expert in blood-spatter interpretation testified that the bloody fingerprint could have been formed only by touching a blood drop while the blood was still wet, and could not have been the result of a blood drop landing on an old fingerprint.

Police found only one blood sample in the apartment capable of yielding blood type information. That sample was taken from blood on one of the bedroom doors which an HPD serologist testified was type-B blood. Jackson had type-B blood, and both victims had type-A blood. A state DNA expert, Mary Henry, testified that Jackson's DNA type matched DNA isolated from blood stains on a red towel and a beige towel located in Henderson's bathroom. That expert testified that Jackson's DNA type for that specific test conducted on the samples from the two towels would occur once out of every 224 people in the black population. FN1. Jackson was black, Wrotenberry was white, and Henderson was black.

A second DNA expert, Joseph Chu, testified that he conducted a different kind of DNA test on the DNA extracted from the beige towel. He concluded that the DNA from the beige towel came from a single source and matched Jackson's DNA type for that test. By comparing Jackson's DNA type to databases of the black population and using calculation methods approved at the time of the DNA testing in March 1997, Chu calculated that the odds that another black person would possess the DNA profile found on the beige towel were one out of 7.2 million. By the time of Jackson's trial in March 1998, the DNA forensic community had endorsed making a calculation based on combining the probabilities from the two different types of DNA tests that Chu and Henry had conducted. Using that calculation method, Chu testified that the probability of Jackson's DNA type appearing in the black population would be one out of 1.6 billion. He testified that he had compared Jackson's DNA type to the databases for the black population because his race was already known. On cross-examination, Chu testified that had he compared Jackson's DNA type to databases of other races, he would have found similar results.

Chu also testified that he conducted DNA tests on blood on the metal bar found in the apartment. The tests showed a mixture of DNA from different people on the metal bar. He compared Henderson's and Jackson's DNA, and Wrotenberry's parent's DNA-a DNA type could not be determined from Allen Wrotenberry's sample-to the mixture of DNA on the bar and could not eliminate any of their DNA from the mixture. The tests concluded that the mixture was consistent with all three individuals' DNA. However, Chu could not determine an exact match of the DNA because of the mixture, nor could he provide a mathematical calculation as to the probability of each individual's DNA being in the mixture.

After considering this evidence, the jury found Jackson guilty of capital murder.

During the penalty phase, the state presented evidence that Jackson snatched a woman's purse in 1990. The state also presented evidence that, in 1992, Jackson robbed two other victims of their purses at gunpoint and attempted to steal a car. For those robberies, he received a sentence of ten years which was imposed on May 13, 1992.

Wrotenberry's father testified that Wrotenberry was a vivacious young man. He played tennis and ping pong and was a fan of the Houston Astros and Rockets. Wrotenberry was divorced and had a one year-old daughter at the time of his death. Wrotenberry had a close relationship with his father, mother, and sister. His father testified that he and his family had difficulty coming to grips with Wrotenberry's death and had undergone counseling. Wrotenberry's sister was admitted to a psychiatric hospital following the murder.

Leroy Smith testified for Jackson. Smith was a barber instructor for the TDCJ. Jackson was Smith's student and had completed over 1400 of the 1500 hours required for a barber training course at the time he was brought back to Houston for his capital murder trial. Smith testified that Jackson was a good student who caused no problems and was respectful of TDCJ personnel and other inmates. Smith never saw Jackson act violently or misuse any of the barber equipment.

Dr. Ann Carolyn Wheeler, a clinical psychologist, also testified for Jackson. She performed a psychological evaluation of Jackson. She testified that Jackson did well in a structured setting, such as prison. He was unlikely to affiliate with a gang or engage in violence in prison. On cross-examination, Dr. Wheeler conceded that Jackson's history of criminal conduct suggested that he was dangerous.

Jackson's mother, Rita Everline, testified that Jackson never knew his father because his father committed suicide when he was a baby. Everline remarried when Jackson was nine months old. Jackson has two younger half-brothers. He was a normal child and got along well with his brothers. Jackson's stepfather had a drinking problem. Sometimes, he and Everline fought, and she fled the house. Jackson did not have any unusual discipline problems at school. Jackson's stepfather's testimony agreed with Everline's testimony.

The jury found that Jackson deliberately committed acts that caused Wrotenberry's death with the reasonable expectation that the death of Wrotenberry or another would result, that there was a probability that Jackson would commit criminal acts of violence that would constitute a continuing threat to society, and that there was not sufficient mitigating evidence to warrant a sentence of life imprisonment rather than death. Accordingly, the jury determined that Jackson be sentenced to death.

The state habeas court found that Jackson's trial counsel interviewed witnesses, talked to his family, and spoke to Jackson about his life and background. The defense counsel contacted everyone that Jackson had requested him to contact for the punishment phase of the trial. In an affidavit, Jackson's trial counsel explained his actions as follows:

During punishment, the jury knew that the defendant had been in prison for 10 years and our main strategy was to establish that he was a good candidate for a life sentence and that he did well in prison. We did not call employees who worked with the defendant at the Luxeford Hotel because the defendant was working there at the time of the offense. Witnesses who knew the defendant during the ten-year period from the offense to the trial would have been in a Catch-22 type of position. If they testified about the defendant's good character, they would be confronted with cross-examination that they didn't know the defendant very well because they did not know that he committed the offense ten years before trial. We presented evidence of the defendant's family background, his good behavior in prison and his psychological profile.

The Texas Court of Criminal Appeals affirmed Jackson's conviction and sentence, Jackson v. State, 17 S.W.3d 664, 677 (Tex.Crim.App.2000), and denied his application for a writ of habeas corpus. Ex parte Jackson, No. 60,124-01 (Tex.Crim.App. Dec. 1, 2004). Jackson filed a federal petition for habeas corpus on November 30, 2005. The district court granted Quarterman's motion for summary judgment and denied Jackson a COA on February 12, 2007. Jackson v. Quarterman, No. H-05-4083, 2007 WL 470643 (S.D.Tex. Feb.12, 2007).

Jackson raises two issues in this application for a COA. He argues that reasonable jurists could debate whether there was sufficient evidence to support his conviction for capital murder. He also argues that reasonable jurists could debate whether he was denied effective assistance of counsel.

II. STANDARD OF REVIEW

Jackson filed his federal habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Accordingly, the petition is subject to AEDPA's requirement that Jackson obtain a COA before an appeal can be taken to this Court. 28 U.S.C. § 2253(c); Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). In determining whether a COA should be issued, this Court limits its examination to a “threshold inquiry into the underlying merit of [the petitioner's] claims.” Id. at 327, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA will be granted if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this standard, a petitioner must demonstrate that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotations omitted). The debatability of the underlying constitutional claim is at issue, not the resolution of that debate. Id. at 342, 123 S.Ct. 1029.

III. DISCUSSION
A. Sufficiency of the evidence

In deciding a sufficiency of the evidence claim, the “relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). Jackson claims that reasonable jurists could debate whether there was sufficient evidence to support his conviction for capital murder. He argues that the evidence was constitutionally insufficient to prove his identity as the one who committed the murders and that there was insufficient evidence to prove that both murders were committed during the course of the same transaction. Jackson points to the fact that he was not identified as a suspect until seven years after the crime and that there was no eyewitness, no sign of forced entry, no proof of a prior relationship with the victims, and no proof of a motive. He also states he was not found in possession of any property taken from the murder scene. Jackson relies on Gibson v. Collins, which accepted that where the only evidence is the discovery of the defendant's fingerprints at the scene of the crime, a reasonable juror may find guilt beyond a reasonable doubt “only if the evidence indicates that the imprinted object was generally inaccessible to the defendant except during the commission of the crime.” 947 F.2d 780, 785 (5th Cir.1991). Jackson also asks this Court to extend Gibson to DNA evidence, specifically the DNA that was found on a towel in the bathroom of the apartment where the murders occurred.

DNA, fingerprint, and blood-type evidence placed Jackson at the apartment both before and immediately after the murders. Jackson's fingerprints were found on a tumbler placed on a stereo speaker in Henderson's room. Blood splatter landed on top of the prints. Jackson's bloody fingerprint was found on Henderson's bedroom door. This print could only have been formed by touching a drop of blood while it was still wet. Therefore, these fingerprints indicate that Jackson was in the apartment both before and soon after the murders. Furthermore, a blood splatter expert testified that the attacker suffered a bleeding wound during the attack. Jackson's DNA was found on bloody towels in the bathroom. Type-B blood, consistent with Jackson's blood, and not consistent with the blood of either victim, was found on a bedroom door. With such evidence, it is not debatable whether any rational trier of fact could have found beyond a reasonable doubt that Jackson's fingerprints and DNA were left at the time of the murders and that Jackson had committed the murders.

Jackson also argues that the evidence was insufficient to show that both murders were committed during the course of the same transaction. This argument is without merit, because of the characteristics of both murders. Both victims suffered cuts to the neck. A bloody knife was found in the kitchen sink. Both victims suffered wounds from blunt force. A bloody metal bar with a mixture of DNA on it was found in the hallway. A neighbor heard what sounded like someone being hit by a pipe or baseball bat in Henderson's apartment. Both murders were committed in that same apartment, separated only by a hallway. Both men's wallets were missing. With such evidence, it is not debatable whether any rational trier of fact could have found beyond a reasonable doubt that both murders were committed during the course of the same transaction.

B. Ineffective assistance of counsel

In deciding an ineffective assistance of counsel claim, this Court first determines whether the counsel's performance was deficient. Turner v. Quarterman, 481 F.3d 292, 298 (5th Cir.2007). “This requires [the defendant to show] that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Second, this Court determines whether the deficient performance prejudiced the defense. Id. “This requires [the defendant to show] that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. In determining whether to grant Jackson's application for a COA, this Court must determine whether reasonable jurists could debate whether Jackson's counsel's performance was deficient, and, if so, whether that performance prejudiced the defense.

Jackson argues that his counsel's performance was deficient in failing to present certain character witnesses at the punishment phase of the trial. He relies on Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), where the counsel's lack of investigation into the defendant's background “did not reflect reasonable professional judgment.” Jackson's reliance on Wiggins is misplaced. In Wiggins, the defense counsel failed to expand the investigation of his client's background beyond social services records and a presentence investigation. Id. at 524, 123 S.Ct. 2527. Wiggins's counsel did not have a social history report prepared as was standard practice in Maryland, even though funds were available to have the report made. Id. His performance fell short of the American Bar Association's standards, and the information that he did have about his client's background indicated that additional investigation for mitigating circumstances was necessary. Id.

Unlike the counsel in Wiggins, Jackson's counsel made a strategic decision not to seek out the witnesses who knew Jackson before or at the time of the murders. Instead, he chose to rely on witnesses who could testify to Jackson's character while he was in prison, the period just before the trial. He also relied on Jackson's mother and stepfather. The defense counsel reasonably decided that witnesses who knew Jackson between the time of the murders and the trial would lack credibility if they testified to his nonviolent character, in light of the fact that the jury had just convicted Jackson of beating two men with a metal bar and cutting their throats. “This court will not question a counsel's reasonable strategic decisions.” Bower v. Quarterman, 497 F.3d 459, 470 (5th Cir.2007). It is not debatable whether Jackson's counsel acted reasonably in deciding not to seek out testimony that Jackson was nonviolent before or at the time of the murders. Therefore, Jackson's application for a COA on the claim of ineffective assistance of counsel is denied.

IV. CONCLUSION