Affirmed and Memorandum Opinion filed March 17, 2020.




                                           In the

                       Fourteenth Court of Appeals

                                  NO. 14-18-00198-CR

                    FREDRICK WAYNE JOHNSON, Appellant

                                              v.
                          THE STATE OF TEXAS, Appellee

                      On Appeal from the 183rd District Court
                              Harris County, Texas
                          Trial Court Cause No. 1143134

                             MEMORANDUM OPINION

       This is a cold case. In 1984, 14-year-old S.D.1 was found dead with her
throat slashed and her hands bound behind her back. Although the case initially
went unsolved, DNA testing on evidence gathered during the Houston Police
Department’s investigation was performed beginning in 2007 and linked appellant
Frederick Wayne Johnson to the crime. In 2018, a jury convicted appellant of

       1
         We use the victim’s initials as she was a minor at the time the offense was committed.
See Tex. R. App. P. 9.10(a)(3), (b).
capital murder. See Act of May 29, 1983, 68th Leg., R.S., ch. 977, § 6, 1983 Tex.
Gen. Laws 5311, 5317 (former Tex. Penal Code § 19.03(a), since amended). The
State did not seek the death penalty, resulting in an assessment of punishment of
life imprisonment with no fine. See Act of May 28, 1973, 63d Leg., R.S., ch. 426,
art. 2, § 2, 1973 Tex. Gen. Laws 1122, 1124 (former Tex. Penal Code § 12.31(a),
since amended). In two issues, appellant argues that (1) the chain of custody was
not established for 15 pieces of evidence admitted by the trial court and (2) the trial
court erred in denying appellant’s motions for mistrial after the State referred to
appellant as a “sociopath” during closing argument. We affirm.

                                I.     BACKGROUND

      On February 7, 1984, S.D.’s body was found in an abandoned apartment
building. Houston Police Department Detective Burmester investigated the crime
scene with Houston Police Department Officer Blando, while Houston Police
Department Sergeant Ward attempted to locate witnesses. Burmester found a piece
of yellow clothing partially covering S.D. and two pieces of paper with dirty or
bloody footprints on them. Each of these items was retrieved from the scene and
marked as evidence by Blando.

      During the investigation, appellant approached Ward, who asked appellant
to come to the police station for an interview. At the station, Burmester collected
appellant’s hat and shoes for testing. Burmester also noticed that the pants
appellant was wearing had writing on them that said “[S.D.] was here” next to an
arrow pointing to the crotch of the pants. Burmester took a cutting from appellant’s
pants that day at the station. The pants were later retrieved from appellant’s
residence with his consent. Later in the investigation, Burmester and Ward
interviewed Marvin Lee Smith, during which Burmester obtained a blood sample
from Smith.

                                          2
       Dr. Espinola conducted the autopsy of S.D., discovering seven wounds on
her neck, including fatal lacerations of her external jugular vein and right common
carotid artery. Espinola also retrieved material from S.D.’s throat and determined
that asphyxiation was a contributing cause of her death. Espinola also took vaginal
and rectal swabs, creating smear slides from these samples, and a blood sample
from S.D. DNA testing was not available at the time the samples were taken.

       In 2007, Detective Mehl of the Houston Police Department Cold-Case
Squad sent numerous items concerning this case to Orchid Cellmark, a forensic
testing company, for DNA analysis. The testing showed that S.D.’s DNA was on
appellant’s pants and also revealed blood on appellant’s pants and shoes. In
addition, the testing showed that the DNA on the vaginal swab collected during the
autopsy was consistent with appellant while excluding Smith as a potential
contributor. After receiving the test results, Mehl met with appellant, collecting
another DNA sample from him on buccal swabs. In 2008, testing of the footprints
collected at the crime scene revealed them to be consistent with appellant’s shoes.
Further testing performed in 2016 on the yellow piece of clothing recovered at the
scene revealed sperm on the garment, for which appellant could not be excluded as
a contributor.

       During a pretrial hearing and at trial,2 appellant objected to the admission of
numerous State’s exhibits on the grounds that the exhibits had not been
authenticated by proof of the chain of custody for each item, including:

           • exhibits 9–12, which were admitted as swabs, slides, and a
       2
         The hearing specifically addressed appellant’s written motion to suppress statements he
gave to the police. While there is no written motion to suppress physical evidence in the record
before us, at the hearing the parties presented testimony concerning the authenticity of numerous
pieces of evidence, and appellant argued that certain evidence discussed herein should be
excluded on chain-of-custody grounds: accordingly, we construe the hearing as addressing a
motion to suppress that evidence as well.

                                               3
               blood sample taken during Espinola’s autopsy of S.D.;
           • exhibit 14, which was admitted as material Espinola removed
             from S.D.’s throat during the autopsy;
           • exhibit 15, which was admitted as buccal swabs with
             appellant’s DNA collected by Mehl in 2007;
           • exhibit 18, which was admitted as cuttings from the pants the
             police collected from appellant;
           • exhibit 19, which was admitted as a blood sample from Smith;
           • exhibit 20, which was admitted as appellant’s shoes and hat that
             Burmester collected from appellant;
           • exhibit 22, which was admitted as a paper recovered from the
             scene with a dirty shoe print on it;
           • exhibit 23, which was admitted as the pair of pants the police
             collected from appellant;
           • exhibit 41, which was admitted as another sample of S.D.’s
             blood;
           • exhibit 50, which was admitted as a paper recovered from the
             scene with a bloody shoe print on it;
           • exhibit 90, which was admitted as a yellow garment found
             partially covering S.D.’s body at the crime scene; and
           • exhibit 91, which was admitted as cuttings from exhibit 90.
The trial court denied appellant’s chain-of-custody objections, either during the
pretrial hearing, at trial, or both, with regard to each of these exhibits.3

       During closing argument, the State referred to appellant as a “sociopath”

       3
          The parties cite to testimony adduced at both the pretrial hearing and at trial in arguing
the admissibility questions raised here. When an appellate court is asked to determine whether
the trial court's denial of a pretrial motion is erroneous, the general rule is that only evidence
adduced at the hearing on the motion is considered. See Hardesty v. State, 667 S.W.2d 130, 133
n.6 (Tex. Crim. App. 1984). However, when, as here, appellate issue “complains of the
admission of evidence at trial, and the issue has been consensually relitigated by the parties
during the trial on the merits, consideration of relevant trial testimony is appropriate.” Id.
Accordingly, we consider evidence from both the pretrial hearing and trial in examining the
exhibits at issue.

                                                 4
twice in quick succession. Each time, appellant objected to the characterization as
improper argument. The trial court sustained appellant’s objections and instructed
the jury to disregard the State’s comments. Appellant moved for a mistrial based
on the State’s comments, which the trial court denied.

                                  II.    ANALYSIS

A. Authenticity of exhibits

      In his first issue, appellant challenges the admission of 15 of the State’s
exhibits on the grounds they were not properly authenticated by chain-of-custody
evidence. Texas Rule of Evidence 901(a) provides that, “[t]o satisfy the
requirement of authenticating or identifying an item of evidence, the proponent
must produce evidence sufficient to support a finding that the item is what the
proponent claims it is.” Tex. R. Evid. 901(a). Under Rule 901, “[t]he preliminary
question for the trial court to decide is simply whether the proponent of the
evidence has supplied facts that are sufficient to support a reasonable jury
determination that the evidence he has proffered is authentic.” Tienda v. State, 358
S.W.3d 633, 638 (Tex. Crim. App. 2012). The trial court’s determination is
reviewed for abuse of discretion. See id. As there were no findings of fact sought
or filed on this issue, we view the evidence in the light most favorable to the trial
court’s ruling and assume that the trial court made implicit findings of fact that
support its rulings as long as those findings are supported by the record. See State
v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

      A chain of custody is not required to authenticate every piece of evidence.
Rather, “[e]vidence may be authenticated in a number of ways, including by direct
testimony from a witness with personal knowledge, by comparison with other
authenticated evidence, or by circumstantial evidence.” Tienda, 358 S.W.3d at 638
(citing Tex. R. Evid. 901(b)(1), (3)-(4)).
                                             5
      While Rule 901 does not discuss requirements for the “chain of custody,”
this method of authentication is typically required for an article of evidence that
has no distinctive features or is fungible, such as DNA evidence. See Hartsfield v.
State, 200 S.W.3d 813, 818 (Tex. App.—Texarkana 2006, pet. ref’d) (discussing
chain-of-custody generally); Avila v. State, 18 S.W.3d 736, 739 (Tex. App.—San
Antonio 2000, no pet.) (discussing DNA evidence). This type of evidence is
sufficiently authenticated when the State establishes “the beginning and the end of
the chain of custody, particularly when the chain ends at a laboratory.” Martinez v.
State, 186 S.W.3d 59, 62 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
However, “[a]bsent evidence of tampering or other fraud, . . . , problems in the
chain of custody do not affect the admissibility of the evidence. Instead, such
problems affect the weight that the fact-finder should give the evidence, which
may be brought out and argued by the parties.” Druery v. State, 225 S.W.3d 491,
503–04 (Tex. Crim. App. 2007) (citing Tex. R. Evid. 901(a) and Lagrone v. State,
942 S.W.2d 602, 617 (Tex. Crim. App. 1997)).

      1. Evidence authenticated by testimony of person with knowledge

      We begin with evidence the State was not required to authenticate by
proving the chain of custody. As discussed above, one way to authenticate an
exhibit is by testimony of a witness with knowledge “that an item is what it is
claimed to be.” Tex. R. Evid. 901(b)(1). A number of the challenged exhibits fall
into this category. Burmester identified several exhibits as items that had been
collected during the crime-scene investigation he conducted with Blando or during
his meeting with appellant at the police station later that same day. Burmester
testified that he recognized pieces of paper with shoe prints on them (exhibits 22
and 50) and a piece of yellow clothing (exhibit 90) as items recovered from the



                                         6
crime scene during his and Blando’s investigation.4 Burmester also identified
appellant’s shoes and hat (exhibit 20) as items appellant was wearing when
Burmester met him at the station, and which Burmester collected from appellant
for testing. Finally, Burmester identified a pair of pants (exhibit 23) as pants
appellant was wearing the day of the investigation by their distinctive markings,
specifically writing with the words “[S.D.] was here” next to an arrow pointing at
the crotch of the pants.

       Appellant argues that the State did not establish a sufficient chain of custody
for each of these exhibits. The testimony of Burmester, however, displays
sufficient personal knowledge of the items for a reasonable juror determine that
each item “is what it is claimed to be,” thereby meeting the authenticity
requirement for admissibility. See Tex. R. Evid. 104(a), 901(b)(1). There was no
need to further authenticate the items by presenting chain-of-custody evidence. See
id.; Tienda, 358 S.W.3d at 638; see also Belcher v. State, 661 S.W.2d 230, 233
(Tex. App.—Houston [1st Dist.] 1983, pet. ref’d) (“The State is not obligated to
prove chain of custody on such items as clothing.”).

       2. Objections to improper storage

       Appellant challenges the authenticity of several items on the basis that they
were improperly stored. Specifically, with regard to items Espinola collected
during the autopsy—vaginal and rectal swabs from the victim (exhibits 10 and 11),
slides prepared from smears from those swabs (exhibit 9), a sample of the victim’s
blood (exhibit 12), and material recovered from the victim’s throat (exhibit 15)—
appellant states that it is “problematic” that Espinola could not testify about “the


       4
        Appellant also challenges the admission of exhibit 91, cuttings from the yellow clothing
marked as exhibit 90, but only on the basis that exhibit 90 itself was not properly authenticated,
which we address above.

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way the evidence was stored during the last 28 years,” and comments that the
Houston Police Department had “issues” with storage of evidence during the time
period relevant to this case.

      These are not appropriate objections to the admissibility of these items on
chain-of-custody grounds. “Without evidence of tampering, most questions
concerning care and custody of a substance go to the weight attached, not the
admissibility, of the evidence.” Lagrone, 942 S.W.2d at 617. Appellant offers no
specific evidence that the items in question were tampered with, instead making
generalized accusations concerning improper storage of evidence in the property
room, which are insufficient. See id.; Caddell v. State, 123 S.W.3d 722, 727 (Tex.
App.—Houston [14th Dist.] 2003, pet. ref’d) (“Objections regarding theoretical or
speculative breaches in the chain, without affirmative evidence of impropriety, go
to the weight of the evidence rather than to its admissibility.”). Appellant’s
arguments boil down to complaints not about the chain of custody, but rather that
the evidence was stored for a long period of time—an argument that has been
firmly rejected by the Court of Criminal Appeals of Texas. See Lagrone, 942
S.W.2d at 617 (“[W]e see no reason to prohibit the admission of properly
identified evidence just because it has been kept in an evidence room for an
extended period of time and undergone prior forensic testing.”). As appellant’s
arguments concern the weight, not the admissibility, of these exhibits, they provide
no grounds to disturb the trial court’s rulings admitting this evidence. See id.

      3. Gaps in the chain of custody

      Appellant challenges the admission of exhibits 15 (buccal swabs with
appellant’s DNA) and 41 (a sample of S.D.’s blood) on the grounds that there was
confusion as to whether Orchid Cellmark received these items in a shipment in
June or September of 2007, and that not all shipping containers were not presented

                                           8
at trial. Likewise, regarding cuttings from appellant’s pants (exhibit 18), appellant
takes issue with the fact that there was no testimony from the sergeant who
checked the cuttings out from the property room, and that the cuttings were not
presented in their original shipping container at trial.5

       These are alleged gaps in the chain of custody that, as above, go to the
weight to be given to these pieces of evidence and not their admissibility. Druery,
225 S.W.3d at 503–04; Lagrone, 942 S.W.2d at 617; see Shaw v. State, 329
S.W.3d 645, 654 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (rejecting
argument that chain of custody was inadequate due to “insufficient evidence
‘tracing the delivery and receipt of the FedEx packages’ from HPD to Orchid
Cellmark”).

       4. Tampering with Smith’s blood sample

       Finally, appellant challenges the admission of the blood sample of Smith,
whom Ward and Burmester interviewed during their initial investigation of the
case. Appellant states that there was leakage from the vial containing the sample
and there was a paper towel in the plastic bag in which the vial was placed that
Burmester, who collected the sample, testified he did not place there. Appellant
concludes that the condition of the exhibit “suggests possible tampering with the
item since it was not in the same condition as when it was originally placed into
storage.”6 This “evidence” of tampering is too speculative for us to conclude that

       5
         Appellant also makes the argument that there was no evidence presented concerning
how the cuttings were “stored during the approximate[ly] twenty-three years [they] sat in the
HPD property room,” while again pointing to generalized “issues” regarding improper storage of
evidence by the Houston Police Department during the time the cuttings were stored in the
property room. As explained above, these arguments go to the weight, not the admissibility, of
the evidence. See Lagrone, 942 S.W.2d at 617.
       6
         Appellant also makes the same arguments we rejected above concerning lack of
testimony about how the sample was stored and lack of packaging in which the sample was
shipped to Orchid Cellmark. Both go to the weight, not the admissibility, of the evidence. See
                                              9
the trial court abused its discretion in admitting the evidence. See Caddell, 123
S.W.3d at 727; Dossett v. State, 216 S.W.3d 7, 16–17, 21–22 (Tex. App.—San
Antonio 2006, pet. ref’d) (“possibility” that DNA samples were contaminated was
insufficient even when mold had grown on samples, testing conditions raised the
possibility of cross-contamination, and sexual assault kit had different number of
slides at time of testing than it did when kit was made 20-years earlier).

      We overrule appellant’s first issue.

B. Closing argument

      In his second issue, appellant argues that the trial court erred in denying
appellant’s motions for a mistrial after the State referred to appellant as a
“sociopath” during closing argument. The State argued as follows:

      [STATE:] What would be a reason that you would cover the face of
      an individual whose throat you just slit? Okay? Because you don’t
      want to look at someone. You don’t want to look at your handy work.
      This man sitting here, this is a deprived individual. He’s a sociopath.
      He’s a guy—
      [DEFENSE]: Objection to improper argument, Judge.
      THE COURT: Sustained.
      [DEFENSE]: Have the jury instructed to disregard—
      THE COURT: Disregard that last statement. Don’t consider—
      [DEFENSE]: Move for a mistrial.
      THE COURT: All right. Don’t consider it for any purpose. And that’s
      denied.
      [STATE]: I’ll rephrase it.
      We know from the evidence he’s a sociopath or was a sociopath—
      [DEFENSE]: Object to improper argument, Judge.
      THE COURT: Sustained.

Lagrone, 942 S.W.2d at 617; Shaw, 329 S.W.3d at 654.

                                            10
      [DEFENSE]: Ask the jury again to be instructed to disregard—
      THE COURT: Disregard that last statement. Don’t considerate it for
      any purpose.
      [DEFENSE]: And we again ask for a mistrial.
      THE COURT: That’s denied. Thank you.
      Proper jury argument generally falls within one of the following four areas:
(1) summation of the evidence; (2) reasonable deduction from the evidence;
(3) answer to argument of opposing counsel; and (4) plea for law enforcement.
Alejandro v. State, 493 S.W.2d 230, 231–32 (Tex. Crim. App. 1973).

      The court of criminal appeals has instructed that reference to a defendant as
a “sociopath” constitutes improper argument if there has been no evidence adduced
that the defendant is a sociopath. Shannon v. State, 942 S.W.2d 591, 597 (Tex.
Crim. App. 1996) (“Assuming that, in fact, there was no evidence in the record that
appellant was a sociopath, then the prosecutor did inappropriately stray outside the
record.”). However, an isolated reference to the defendant as a sociopath, even
when unsupported by the record, is cured by the trial court’s “prompt instruction”
that the jury disregard the statement. Id. at 597–98 (denial of motion for mistrial
proper when trial court instructed jury to disregard references to defendant as
sociopath in closing). Here, the trial court sustained appellant’s objections of
improper argument and immediately instructed the jury to disregard the State’s
references to appellant as a sociopath, curing any harm. See id. Under these
circumstances, we determine the trial court did not err in denying appellant’s
motions for a mistrial based on the State’s references to appellant as a sociopath.
We overrule appellant’s second issue.




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                               III.   CONCLUSION

      Having overruled appellant’s issues, we affirm the trial court’s judgment.




                                      /s/    Charles A. Spain
                                             Justice



Panel consists of Justices Wise, Zimmerer, and Spain.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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