No. 14-05-00667-CR
Opinion filed October 17, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 180th District Court, Harris County, Texas, Trial Court Cause No. 963,214. Affirmed.
Panel consists of Chief Justice HEDGES and Justices YATES and SEYMORE.
ADELE HEDGES, Chief Justice.
Appellant, James Edward Lane, appeals following his conviction of murder and sentence of life in prison. In his first point of error, appellant claims that the trial court erred in admitting certain evidence. Appellant's second and third points of error contend that the trial court erred in admitting DNA test results into evidence. In his final point of error, appellant argues that it was error for the trial court to deny him the right to inspect a report reviewed by a witness in preparation for trial. We affirm.
I. BACKGROUND
In December of 1990, Ida Mae Lane separated from her husband, appellant, and moved in with her sister, Annie Bullard. Mrs. Lane had complained of repeated threats by appellant against her life. On January 27, 1991, Mrs. Lane visited a local club with her friend, Mary Temple. At about 1:50 a.m., the two women left the club and Mrs. Lane dropped Ms. Temple off at home. Mrs. Lane then headed back toward her sister's home. At about 3:00 a.m., two of Mrs. Bullard's neighbors heard an argument between a man and a woman followed by a popping sound. The neighbors saw a man flee in a large, dark, older car. A short time later, Mrs. Lane was found dead in Mrs. Bullard's driveway. She had been shot in the head. Detectives at the scene collected a number of blood samples from Mrs. Bullard's driveway, the surrounding sidewalk, and the road. Detective Curtis Brown contacted appellant to inform him of his wife's murder and asked him to come to the scene. After appellant failed to come to the scene, Detective Brown visited appellant at his sister's home. Detective Brown testified that appellant seemed very nervous and had fresh puncture wounds on his hands. Appellant's explanation for the wounds was that he had fallen off an exercise bicycle. Appellant also refused to allow Detective Brown to see his car. His car was later found less than a mile from appellant's home; there was blood splattered in various locations in the car. On February 14th, 1991, appellant gave a written statement to detectives concerning his wife's death. The following day, he gave a blood sample, saliva sample, and hair sample. Based on the evidence available at that time in 1991, appellant was not charged with a crime. In 2003, the "cold case squad" of the Harris County Sheriff's office reopened the investigation into Mrs. Lane's death. DNA testing showed a one hundred percent match between the DNA from the blood samples collected from Mrs. Bullard's driveway and the surrounding road and appellant's DNA. Appellant was charged with Mrs. Lane's murder. A jury subsequently found him guilty of murder and sentenced him to life in prison. II. ANALYSIS
In his first point of error, appellant queries "whether the evidence presented at appellant's trial, when the evidence that was derived from impermissible sources is properly excluded, is sufficient upon which a rational jury could reach a decision of guilt." We interpret this issue as a sufficiency of the evidence challenge urging us to disregard allegedly impermissible evidence. Appellant, however, neither cites any legal authority regarding sufficiency standards, nor attempts to show how the evidence in this case actually is insufficient. Additionally, a reviewing court considers all the record evidence, including inadmissible evidence, when conducting a sufficiency review. Powell v. State, 194 S.W.3d 503, 507 (Tex.Crim.App. 2006); Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). Finally, the analysis appellant actually does provide involves applying evidentiary standards of the admissibility of evidence to the record in this case. After looking at the substance of appellant's first point of error, we will infer appellant's argument to be a challenge to the admissibility of certain evidence. Appellant cites close to fifty instances in the record of evidence he claims was impermissibly allowed by the trial court. Of those approximately fifty citations, in all but one, appellant either failed to object at trial, or failed to obtain a ruling on his objection. Therefore, appellant waived any error as to that evidence. See TEX. R. APP. P. 33.1(a) (in order to preserve error for appellate review, a complaint must have been made "to the trial court by a timely request, objection, or motion . . . and the trial court [must have] ruled on the request, objection, or motion, either expressly or implicitly"). In other instances, appellant's objections were sustained. The only place in the record that appellant cites to in which he objected and received an adverse ruling from the trial court is a hearsay objection to Mary Temple's testifying that Ida Mae Lane told her she had been sick and had "some kind of disease." Even if Mrs. Temple's testimony fails to qualify as an exception to the hearsay rule, the evidence presented in her testimony was clearly cumulative of the same evidence admitted without objection. As a result, any error by the trial court was harmless. See Purtell v. State, 761 S.W.2d 360, 368 (Tex.Crim.App. 1988) ("[A]n error in the admission of evidence is cured where the same evidence comes in elsewhere without objection."); Duncan v. State, 95 S.W.3d 669, 672 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). We overrule appellant's first point of error. In his second point of error, appellant frames the issue as "whether the DNA sample test results were the product of contamination." This issue is not framed so as to provide a point of error which is reviewable by an appeals court. Appellant's analysis in this point of error consists of a survey of evidence of alleged proof of contaminated DNA samples followed by a recitation of standards applicable to the admissibility of scientific evidence at trial. We understand appellant's argument, so structured, to be a challenge to the admissibility of the DNA test results. The proponent of scientific evidence, such as the DNA test results offered by the State in this case, must prove to the trial judge, by clear and convincing evidence and outside the presence of the jury, that the proferred evidence is reliable and therefore relevant. Tex. R. Evid. 702; Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App. 1992) (interpreting Rule 702). Any issue of contamination would be pertinent to the trial court in deciding if the evidence was reliable. See, e.g., Jackson v. State, 17 S.W.3d 664, 670-72 (Tex.Crim.App. 2000) (analyzing whether DNA evidence was reliable when allegations of contamination were raised); Hines v. State, 38 S.W.3d 805, 808 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (applying the Kelly reliability analysis to claims of contaminated DNA). In this case, however, appellant failed to object at trial to the admission of the DNA test results and therefore, has failed to preserve any error on appeal. See TEX. R. APP. P. 33.1(a). We overrule appellant's second point of error. In his third point of error, appellant casts the issue as "whether the evidence regarding the DNA sample test results was insufficient." Appellant's only contention, in developing his point of error, is that because the chain of custody for the blood samples used in performing the DNA tests was not adequately established, the trial court erred in admitting the DNA evidence. Under TEX. R. EVID. 901, a proponent of the results of scientific testing, such as the DNA test results here, is required to establish a chain of custody in order to authenticate that evidence. See, e.g., Smith v. State, 450 S.W.2d 92, 94 (Tex.Crim.App. 1970) (holding that the evidence was admissible because a proper chain of custody was established); Avila v. State, 18 S.W.3d 736, 739 (Tex.App.-San Antonio 2000, no pet.); Moone v. State, 728 S.W.2d 928, 930 (Tex.App.-Houston [14th Dist.] 1987, no writ) (finding the chain of custody was established). As mentioned above, however, appellant failed to object at trial to the admissibility of the D.N.A. test results, and therefore, has waived any error with respect to that evidence. See TEX. R. APP. P. 33.1(a). We overrule appellant's third point of error. In his final point of error, appellant complains that the trial court violated Texas Rules of Evidence 612 by denying him the opportunity to inspect a report that Detective Fikaris used in preparation for his testimony. Rule 612 provides that if a witness uses a writing to refresh his memory before or during his testimony, then "an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness." During cross-examination of Detective Fikaris at trial, appellant's defense counsel asked to inspect a police report the detective had used to refresh his memory in preparing for trial. Detective Fikaris then handed the defense counsel the requested report. Appellant claims that sometime thereafter, the prosecutor caused the defense counsel to return the requested full report, leaving the defense with only an outline of that report. Appellant argues that the trial court, in allowing the outline to be substituted for the full report, denied him his right of access to the full report under Rule 612. While it is unclear what right appellant was denied by not having access to the full report, it is apparent that he failed to object at trial to any problem associated with receiving the outline instead of the full report. As a result, appellant waived any error with respect to his receipt of the outline that Detective Fikaris prepared in preparation for his testimony. TEX. R. APP. P. 33.1(a); see also Brown v. State, No. 12-01-00117-CR, 2002 WL 1338611, at *8 (Tex.App.-Tyler June 18, 2002, pet. ref'd) (not designated for publication) (finding that appellant waived any Rule 612 error). Accordingly, we overrule appellant's fourth point of error. We affirm the trial court's judgment.