Opinion
No. 05-04-00253-CR
Opinion Filed April 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-71491-P. Affirm.
Before Justices MORRIS, FRANCIS, and LANG-MIERS.
OPINION
A jury convicted appellant Lakeith Geron Ford of aggravated sexual assault and set punishment at life imprisonment. Appellant brings ten issues on appeal, contending that the trial court erred by: (1) allowing the State to enhance appellant's punishment by motion without formal presentation to the grand jury; (2) admitting DNA evidence during the guilt/innocence phase of trial; (3) admitting evidence for which the State did not establish a chain of custody; (4) admitting expert testimony about DNA testing because the State failed to lay the proper predicate; (5) admitting evidence of appellant's prior robbery conviction for impeachment; (6) allowing improper jury argument during the guilt/innocence phase of trial; (7) admitting DNA evidence during the punishment phase of trial; (8) admitting evidence of appellant's prior conviction for attempted unauthorized use of a motor vehicle; (9) allowing a victim of an unadjudicated offense testify that she was afraid of appellant; and (10) overruling appellant's motion for mistrial during the punishment phase of trial. We affirm. Appellant sexually assaulted Denise Rathjen in her own home while her children slept in other rooms of the house. After the sexual assault, he told her that he would have to kill her because she had his DNA. When she begged him not to kill her, he asked if she had anything valuable. She gave him her jewelry, which he placed in a pillowcase. He told her that he would return the jewelry if she did not tell police about the rape, and threatened to kill her children if she called the police. Denise called the police in spite of appellant's threat and then went to the hospital where she underwent a rape examination. A DNA profile taken from appellant matched the DNA of samples taken from Denise's vagina and thigh during the examination.
The complainant used the pseudonym Denise Rathjen to protect her identity.
PUNISHMENT ENHANCEMENT BY MOTION
In his first point of error, appellant contends that the trial court erred in allowing the State to enhance his punishment by motion without formal presentation to the grand jury. The State filed a pre-trial motion to enhance appellant's punishment using a prior conviction for robbery, but did not include an enhancement paragraph in the indictment. Before trial began, appellant objected that the motion was inadequate to provide notice of enhancement because it was not presented to a grand jury. The trial court overruled appellant's objection. Because a defendant is entitled to notice of prior convictions to be used for enhancements, such prior convictions must be pled in some form. Brooks v. State, 957 S.W.2d 30, 34 (Tex.Crim.App. 1997). Although it is permissible and perhaps preferable to do so, alleging an enhancement in the indictment is not the only reasonable method of conveying notice. Id. A trial court does not err by submitting the enhancement issue to the jury simply because an enhancement paragraph is not included in the indictment. See id. Here, the State provided appellant with adequate notice of the prior conviction it intended to use to seek enhancement of appellant's sentence. The State filed a motion with the trial court specifically outlining the intent that appellant's punishment be enhanced using a previous robbery conviction. The State's motion listed the dates of the previous offense and conviction, cause number and style of the case, and the court in which the conviction took place. Furthermore, the motion was filed more than three months before appellant's trial began. See Fairrow v. State, 112 S.W.3d 288, (Tex.App.-Dallas 2003, no pet.) (citing Sears v. State, 91 S.W.3d 451, 455 (Tex.App.-Beaumont 2002, no pet.), which stated that notice to enhance using prior conviction given ten days prior to trial is presumptively reasonable). Because the State pled and gave appellant notice of the prior conviction to be used for enhancement purposes, we conclude that the trial court did not err by allowing the State to seek enhancement of appellant's punishment. We overrule appellant's first issue.MOTION TO SUPPRESS
In his second and seventh points of error, appellant contends that the trial court erred in overruling his motion to suppress buccal swab evidence at the guilt/innocence and punishment phases of trial. Appellant filed a motion to suppress evidence of two buccal swabs of saliva taken from appellant, contending that they were taken without probable cause and in violation of his right to counsel. The trial court overruled the motion concerning both buccal swabs when appellant brought the motion up in sub rosa hearings prior to the guilt/innocence and punishment phases of trial. On appeal, appellant only argues that the buccal swabs were taken in violation of his Sixth Amendment right to counsel. We review a trial court's ruling on a motion to suppress for abuse of discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). However, when the resolution of the factual issues does not turn upon credibility or demeanor, we review the trial court's determination of the applicable law, as well as its application of the law to the facts it has found, de novo. Id.; State v. Mata, 30 S.W.3d 486, 488 (Tex.App.-San Antonio 2000, no pet.). After a defendant is indicted for an offense, adversary judicial proceedings begin and the defendant's right to counsel attaches. See Rose v. State, 711 S.W.2d 89, 91 (Tex.App.-Dallas 1986, no writ). The Supreme Court has held that after the right to counsel attaches, any pretrial confrontation of the accused must be scrutinized "to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself." U.S. v. Wade, 388 U.S. 218, 227 (1967). If the presence of counsel is necessary, we must analyze "whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice." Id. This court has held that the taking of blood and saliva samples is not a critical stage at which the accused has the right to the presence of counsel. Rose, 711 S.W.2d at 92. Here, appellant had the opportunity to cross-examine the State's witnesses who testified about taking the buccal swabs. Additionally, he was free to call his own witnesses and to make his own analysis of the buccal swabs. We conclude that the trial court did not err in overruling appellant's motion to suppress the buccal swab evidence because appellant was not entitled to counsel when the buccal swabs were obtained. Accordingly, we overrule appellant's second and seventh points of error.CHAIN OF CUSTODY
In appellant's third point of error, he contends that the trial court erred by overruling his objection to evidence concerning samples taken from Denise's thigh. He argues that the State failed to establish a chain of custody for the samples. At trial, Denise testified that she went to Parkland Hospital for an examination after the rape. She stated that a swab was taken of some material believed to be semen that was found on her thigh. The examining doctor later testified that, among other things, he collected specimens for DNA testing from Denise and placed them on swabs and slides, labeled them, and placed them in a box sealed with nontamper tape. He stated that he placed the sealed box in a lock box, where employees from the Southwest Institute of Forensic Sciences ("SWIFS") would pick it up. The doctor did not recall or have any notes about taking the swab from Denise's thigh, but stated that he would have taken the sample if he had noticed signs of sperm on her leg. Appellant later objected to the admission of further evidence of test results from the thigh swab, stating that the State had not established a proper chain of custody. He requested that all references to the thigh swab in SWIFS documents be redacted. The trial court overruled appellant's objection and stated that the proof of custody went to the weight and not the admissibility of the evidence. We review the admissibility of evidence under an abuse of discretion standard. Silva v. State, 989 S.W.2d 64, 68 (Tex.App.-San Antonio 1998, no pet.); see Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990). Texas Rule of Evidence 901 governs authentication of evidence. See Tex. R. Evid. 901. Its general provision provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Rule 901 only requires a showing that satisfies the trial judge that the item in question is what the State claims, and most questions concerning custody go to the weight rather than the admissibility of evidence. Kingsbury v. State, 14 S.W.3d 405, 407 (Tex.App.-Waco 2000, no pet.); Silva, 989 S.W.2d at 68. Absent evidence of tampering or commingling, theoretical breaches in the chain of custody do not affect the admissibility of evidence. Kingsbury, 14 S.W.3d at 407; Silva, 989 S.W.2d at 68. Here, appellant offered no evidence of tampering or commingling. Instead, he objected that a chain of custody had not been established on the thigh swab because the examining physician did not take any notes regarding the swab or remember taking it. However, Denise testified that he had taken the thigh swab, and the physician testified that he would have taken the swab if he had noticed any material that looked like sperm. We conclude that the State elicited enough information for the trial court to have determined that the thigh swab was what the State purported it to be and, therefore, that the trial court did not abuse its discretion by overruling appellant's objection to the swab. Accordingly, we overrule appellant's third issue.EXPERT TESTIMONY ABOUT DNA
In his fourth point of error, appellant contends that the trial court erred in admitting the testimony of an expert witness about DNA testing because the State failed to lay the proper predicate. Before the State called expert witness Melissa Sweetland to testify about DNA testing done in the case, appellant requested that the court conduct a hearing to determine the admissibility of her testimony under Texas Rule of Evidence 702. See Tex. R. Evid. 702. After a hearing outside the presence of the jury, appellant objected that the State failed to lay the proper predicate for Sweetland's testimony. The trial court overruled his objection. Texas Rule of Evidence 702 provides as follows:If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.Tex. R. Evid. 702. The trial court's task under Rule 702 is to determine by clear and convincing evidence whether the proffered scientific expert testimony is sufficiently reliable and relevant to help the jury reach accurate results. Jordan v. State, 928 S.W.2d 550, 554 (Tex.Crim.App. 1996); Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App. 1992). To be considered reliable, evidence based on scientific theory must satisfy the following three specific criteria pertaining to its validity and application: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Hartman v. State, 946 S.W.2d 60, 62 (Tex.Crim.App. 1997); Kelly, 824 S.W.2d at 553. Factors affecting a trial court's determination of reliability include, but are not limited to: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community; (2) the qualifications of the experts testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question. Kelly, 824 S.W.2d at 553. In the hearing to determine the admissibility of her testimony, Sweetland testified that she was employed by SWIFS as a forensic biologist, had a bachelor's degree in biology and experience in DNA testing since 1993, had been through training and competency tests and annual efficiency tests, and had testified to laymen about DNA testing in many courts. She stated that SWIFS was accredited for DNA analysis and used three-ten analyzers and Polymerase Chain Reaction machines, both instruments accepted in the scientific community as reliable and capable of DNA analysis, to generate and test DNA profiles. Sweetland testified that the underlying scientific theory for DNA is valid and has been accepted by the scientific community, that literature exists supporting the scientific theory, that the techniques used to apply the theory are valid, and that those valid techniques were applied in this case. Although she stated that she was unfamiliar with the error rate of DNA testing, she testified that she used quality measures and positive and negative controls to insure accuracy during DNA testing. Based upon Sweetland's testimony, the trial court determined that her testimony about DNA testing was admissible. Appellant contends that Sweetland's testimony at the hearing was insufficient to show that her testimony would help the jury reach accurate results. However, viewing the evidence in the light most favorable to the trial court's finding, we hold that the trial court did not abuse its discretion. Accordingly, we overrule appellant's fourth point of error.
IMPEACHMENT USING PRIOR CONVICTION
In appellant's fifth point of error, he contends that the trial court erred in ruling that the State could use evidence of appellant's prior robbery conviction for impeachment purposes. In a hearing outside the presence of the jury, appellant requested a ruling on whether the State would be allowed to use any prior convictions to impeach appellant if he chose to testify. The State informed the trial court of a robbery conviction and misdemeanor convictions for attempted unauthorized use of a motor vehicle and evading arrest and detention using a motor vehicle. The trial court ruled that the State could use the robbery, but could not use the misdemeanors. After the hearing, appellant chose not to testify. He contends that he based his decision on the trial court's ruling on the previous robbery conviction. The United States and Texas Supreme Courts have held that to raise and preserve error for review on a trial court's ruling refusing to foreclose cross-examination about previous extraneous offenses, a defendant must testify. Luce v. United States, 469 U.S. 38, 43 (1984); Jackson v. State, 992 S.W.2d 469, 479-80 (Tex.Crim.App. 1999). Because appellant chose not to testify, he failed to preserve error on the trial court's ruling that the State would be allowed to use evidence of his prior robbery conviction if he testified. As a result, we overrule his fifth point of error.IMPROPER JURY ARGUMENT
In appellant's sixth point of error, he contends that the trial court erred in overruling his objection to improper jury argument during the guilt/innocence phase of trial. During jury argument, appellant's counsel stated that Denise's lack of physical injuries such as bruising, neck pain, and swelling, abrasion, or trauma in the pelvic region could cause reasonable doubt that a violent rape occurred. Appellant's counsel stated that "[i]t just doesn't add up." In response, the prosecutor made the following statement during the State's closing argument:I find it troubling, I suppose perhaps as a woman I find it disturbing that Defense Counsel wants to argue that, gosh, look at this rape exam no where on here does it show that Denise Rathjen, I guess, fought to the living death. Shouldn't she be bruised, shouldn't she have her teeth knocked out and broken arms from fighting and scratching her way out of this attack? I guess that means . . .Appellant's counsel objected, stating that the prosecutor was attacking appellant over the shoulders of appellant's counsel. The prosecutor stated that she was speaking in answer to the defense argument. The trial court overruled appellant's objection. Proper areas of jury argument are: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to argument of opposing counsel; and (4) pleas for law enforcement. See Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996). The State may not strike at a defendant over the shoulders of his counsel or accuse defense counsel of bad faith or insincerity during argument. Harris v. State, 122 S.W.3d 871, 886 (Tex.App.-Fort Worth 2003, no pet.). Uninvited and unsubstantiated accusations of misconduct directed at a defendant's attorney are manifestly improper because they serve to inflame the minds of the jury to the defendant's prejudice. Id. Although defense counsel is protected from unwarranted attack by the prosecution, the prohibition only applies to remarks directed at defendant through his counsel for the purpose of inflaming the minds of the jurors and not to a prosecutor's reply to counsel's argument. Stokes v. State, 506 S.W.2d 860, 864 (Tex.Crim.App. 1974); Harris, 122 S.W.3d at 886. A comment that facially appears aimed at defense counsel but actually strikes at his argument may be appropriate because a State may properly respond when the defense invites argument. Swarb v. State, 125 S.W.3d 672, 686 (Tex.App.-Houston [1st Dist.] 2003, no pet.); Howard v. State, 896 S.W.2d 401, 405 (Tex.App.-Amarillo 1995, writ ref'd). In this case, the prosecution's argument was not directed at defense counsel, but at defense counsel's argument. As a result, we cannot say that the trial court abused its discretion in overruling the objection. We overrule appellant's sixth point of error.
ATTEMPTED UNAUTHORIZED USE OF A MOTOR VEHICLE
In his eighth point of error, appellant contends that during the punishment phase the trial court erred in admitting evidence of appellant's previous conviction for attempted unauthorized use of a motor vehicle. Prior to the punishment phase, appellant objected to the introduction of a judgment showing his previous conviction. He argued that attempted unauthorized use of a motor vehicle is not an offense and that the judgment showing his conviction was therefore void. The trial court overruled his objection. Texas Penal Code section 15.01(a) provides that "[a] person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than preparation that tends but fails to effect the commission of the offense intended." Tex. Pen. Code Ann. § 15.01(a) (Vernon 2003). Nothing in the penal code prevents this section from being applied to the offense of unauthorized use of a motor vehicle. We conclude appellant's claim is without merit. Accordingly, we overrule his eighth point of error.PUNISHMENT TESTIMONY
In his ninth point of error, appellant contends that the trial court erred in overruling his objection that a witness's testimony about an unadjudicated offense was prejudicial. During the punishment phase, Elizabeth Wrase testified that appellant sexually assaulted her in her apartment in Tyler, Texas. The offense was unadjudicated. After Wrase identified appellant in open court, the State asked her how she felt right then being in the room with him. She replied that she felt scared. When the State asked why she was scared while bailiffs and others were in the courtroom to protect her, appellant objected that the testimony was prejudicial. The trial court overruled his objection. Appellant contends the State is prohibited from eliciting testimony that a witness is afraid while testifying and his right to confront witnesses was prejudiced when the trial court allowed Wrase's testimony about her fear. He cites Johnson v. State, 662 S.W.2d 368 (Tex.Crim.App. 1984) and Thomas v. State, 519 S.W.2d 430 (Tex.Crim.App. 1975). However, appellant's reliance on Johnson and Thomas is misplaced because both cases dealt with jury arguments and the impropriety of implying a witness did not testify because he was afraid to face the defendant in a courtroom. Johnson, 662 S.W.2d 368; Thomas, 519 S.W.2d 430; Gorrer v. State, 739 S.W.2d 417, 419 (Tex.App.-Beaumont 1987, no writ). Here, because Wrase did in fact testify, the State could not possibly have implied that she avoided testifying because she was afraid of appellant. Furthermore, appellant's right to confront witnesses was not prejudiced because he had the opportunity to cross-examine Wrase. We conclude appellant's argument is without merit. We overrule appellant's ninth point of error.MOTION FOR MISTRIAL
In appellant's tenth point of error, he contends that the trial court erred by denying his motion for mistrial regarding Denise's victim impact testimony. During punishment, the State asked Denise to testify about the effect the sexual assault had on her life. She testified as follows:It's from the very beginning, start off as more of a shock, a disbelief that you're assaulted in your own house, in your own bed, with four small children there, that you have no defense, there's nothing you can do. It was made mention too that they didn't wake up. Well, my two-year-old woke up, that was enough to make me stop and think, you know, if they all wake up what's going to happen to them? If I do anything to him, fight him anymore, you know, even if I get away where do I go, what two kids do I grab, what room do I go to, how can you make that decision on which of your kids to save? If I run out the door then, although, I am gone and I may have two of them with me I still have two children in the house with somebody as sick as him who doesn't care about anything, had showed no remorse.Appellant objected that the testimony about lack of remorse violated his Fifth Amendment rights. The trial court sustained his objection and instructed the jury to disregard Denise's statement that appellant had showed no remorse, but overruled appellant's motion for mistrial. Appellant argues that Denise's statement constituted a comment on appellant's decision not to testify and that the trial court erred by overruling his motion for mistrial. The State contends that Denise's statement did not refer to appellant's decision not to testify, but to her perception that appellant showed no remorse during the commission of the offense. When a trial court sustains an objection and gives the jury an instruction to disregard but denies a request for mistrial, the proper issue on appeal is whether the refusal to grant the mistrial was an abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex.Crim.App. 2004). Because a mistrial is the court's remedy for improper conduct that is so prejudicial that expenditure of further time and expense would be wasteful and futile, it is only required in extreme circumstances where prejudice is incurable. Id. An instruction to disregard by the trial court will generally cure error. Campos v. State, 589 S.W.2d 424, 428 (Tex.Crim.App. 1979). In determining whether the trial court abused its discretion by denying a mistrial, we balance the following three factors: (1) the severity of the misconduct; (2) curative measures; and (3) the certainty of punishment assessed absent the misconduct. Hawkins, 135 S.W.3d at 84. Assuming, without deciding, that Denise's statement that appellant "had showed no remorse" was an improper comment on appellant's failure to testify, we conclude that the trial court did not abuse its discretion by denying appellant's motion for mistrial. The statement was isolated and was not emphasized or invited by the State. Upon appellant's request, the trial court promptly instructed the jury to disregard the statement. The trial court also included in its jury charge an instruction that during punishment deliberations, the jury could not and must not refer to or allude to the fact that appellant did not testify, and could not take that fact into consideration for any purpose whatsoever. Additionally, the record supports the punishment assessed absent the comment. At trial, the State presented evidence that appellant sexually assaulted Denise, threatened to kill her, and threatened to kill her children and place their heads in her mailbox. During the punishment phase, the State presented evidence that appellant was previously convicted of misdemeanor attempted unauthorized use of a motor vehicle, misdemeanor evading arrest and detention using a motor vehicle, and robbery. Additionally, the State presented evidence that appellant broke into another woman's apartment in another town and sexually assaulted her. Under the circumstances of this case, the trial court was reasonable in believing that its instruction to disregard was effective and that appellant suffered no prejudice from Denise's comment. We conclude that the trial court did not abuse its discretion by denying the motion for mistrial. Accordingly, we overrule appellant's tenth point of error.