
NO. 07-04-0347-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 29, 2004

______________________________


IN THE MATTER OF TONY GIBBS
_________________________________

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2003-760,757; HONORABLE MARK C. HALL, JUDGE

_______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
MEMORANDUM OPINION
	On November 22, 2004, appellant filed a Motion to Dismiss Appeal signed by both
appellant, appellant's mother and appellant's attorney.   
	Accordingly, without passing on the merits of the case, appellant's Motion to Dismiss
Appeal is granted and the appeal is hereby dismissed.  Rule 42.1(a).  
	Having dismissed the appeal at appellant's request, no motion for rehearing will be
entertained, and our mandate will issue forthwith. 


							Phil Johnson
							Chief Justice
 

y: Arial">	Appellant does not challenge the sufficiency of the evidence so we review only the
facts necessary to a discussion of the issues raised.  In 1999, appellant was married to
Jackie Skipper and the couple lived in his house with Jackie's daughter Rebecca.  In
August 2000, a doctor told Jackie that Rebecca was pregnant.  After questioning, Rebecca
related that shortly before her 12th birthday in December 1999, she was home alone with
appellant, who had been drinking, and that he had come into her room and sexually
assaulted her.  
	Law enforcement authorities were notified and conducted interviews with Rebecca
and Jackie.  Rebecca gave birth on October 9, 2000.  In November 2000, appellant
voluntarily provided a DNA sample for comparison with samples from Rebecca and her
child. The samples were taken in Lubbock and tested in a Dallas laboratory.  Based on the
results of those tests, appellant was indicted for the felony offense of aggravated sexual
assault in January 2001.  Trial was to a jury in April 2002, at which the jury found appellant
guilty and assessed punishment at life imprisonment and a $10,000 fine.
	Appellant's first issue assigns error to the trial court's overruling his objection to the
introduction of the oral swabs used to collect the DNA evidence. He cites as authority the
discussion in Jackson v. State, 17 S.W.3d 664 (Tex.Crim.App. 2000), in which the Court
of Criminal Appeals made reference to its holding in Hollowell v. State, 571 S.W.2d 179
(Tex.Crim.App. 1978), that evidence willfully withheld from disclosure under a discovery
order should be excluded from the trial. Jackson, 17 S.W.3d at 673. 
	We initially note appellant's brief contains no citation to the record where his
discovery request appears.  See Tex.R.App.Proc. 38.1(h).  Our examination of the record
reveals a discovery motion requesting production of twenty-three numbered categories of
items.  None of the items expressly seek production of DNA samples or the materials used
to collect cell samples for testing.
	The record reflects that appellant's discovery motion was heard by the trial court at
a pretrial hearing in October 2001. At the hearing, the prosecutor noted her office had an
open file policy and defense counsel had a copy "of everything that I have in my
possession right now."  She also stated "I believe there's DNA results in this case, and we
do have those in the file as well, and we'll make those available to defense counsel." 
Following the prosecutor's remarks, the trial court stated, "The Court will show then that
the Motion for Discovery, Production and Inspection of Evidence will be granted by the
Court." No written order granting the motion was entered. 
	At trial, appellant's counsel objected to admission into evidence of the three vials
containing the swabs and the bag in which they were contained, asserting that the State
had failed to "turn over" the swabs in accordance with the discovery motion granted by the
court so that he could conduct independent tests on the DNA samples. Appellant's counsel
acknowledged the State's open file policy, but stated that the vials themselves were not
in the file. He argued that the swabs should have been produced in response to the item
in his motion requesting "All objects and tangible property taken by the State from the
defendant, including but not limited to the following: a. clothing, b. personal property." The
prosecutor responded that the swabs had remained at the Dallas laboratory following
testing, and that appellant had copies of the reports giving the test results and had never
asked for independent testing. The trial court overruled the objection to the admission of
the swabs.  
	Appellant argues on appeal that the State's failure to make the DNA samples
available to him without further request on his part amounted to the willful withholding of
the samples.  We cannot agree.  The swabs cannot reasonably be said to be covered by
the discovery request cited by appellant at trial. Cf. Terrell v. State, 521 S.W.2d 618
(Tex.Crim.App. 1975) (motion expressly requested access to controlled substance for
independent testing). Even if the swabs are viewed as objects or items of tangible property
taken by the State, the swabs containing cell samples from Rebecca and the child were
not taken from appellant and are thus clearly outside the scope of the request. (1) Given the
lack of a clear request for them, the actions of the prosecution did not amount to the willful
withholding of the samples.  The State referred specifically to the DNA test results during
the pretrial hearing at which the discovery motion was considered, some five months
before trial.  The record does not reflect that the subject was raised again until the samples
were offered into evidence at trial. Under those circumstances, the trial court did not err
by overruling appellant's objection to admission of the swabs.

 At points in the section of his brief presenting his argument on this issue, appellant
characterizes his trial objection as one objecting to the admission of DNA testimony by the
State's expert witness. The record does not reflect that appellant objected to admission of
the expert's testimony, or to admission of the expert's report. As noted, appellant's counsel
objected at trial to the admission into evidence of the three vials containing the three oral
swabs by which cell samples were taken from the mouths of appellant, Rebecca and her
child, and of the bag containing the vials. Even if the trial court's ruling on admission of the
swabs was error, it was rendered harmless because appellant made no objection to the
testimony of the State's expert that appellant was the father of Rebecca's child. It is well
established that objections to the admission of evidence are waived when substantially
similar evidence is admitted without objection.  See Brosky v. State, 915 S.W.2d 120, 135
(Tex.App.--Fort Worth 1996, pet. ref'd), cert. denied, 519 U.S. 1020 (1996).  We overrule
appellant's first issue.  
	Appellant's second issue assigns error to the trial court's failure to prevent the State
from making improper jury argument during the punishment phase of the trial. Appellant
concedes no objections were raised at trial to the prosecutor's arguments but urges for
policy reasons that the prosecutor's arguments should be treated as structural error not
requiring preservation by objection. The rules that govern our review include the mandate
of Rule 33.1 of the Texas Rules of Appellate Procedure that preservation of a complaint
for appellate review requires a contemporaneous objection.  Tex.R.App.Proc. 33.1.  This
rule applies to complaints of improper jury argument.  Mathis v. State, 67 S.W.3d 918
(Tex.Crim.App. 2002); see Cockrell v. State, 933 S.W.2d 73 (Tex.Crim.App. 1996), cert.
denied, 520 U.S. 1173 (1996).  In Mathis, the court declined to overrule Cockrell, which the
court described as "perfectly in line with Rule of Appellate Procedure 33.1 and the policies
underlying preservation of error." 67 S.W.3d at 927. We must conclude that any errors
arising from improper prosecutorial argument were not preserved for our review. We
overrule appellant's second issue and affirm the judgment of the trial court.

							James T. Campbell
							         Justice


Do not publish.
1. Appellant's discovery motion also contained an item encompassing reports
pertaining to "blood, other body fluids, breath, [or] hair."  It is undisputed that appellant had
been provided a copy of the report from the State's expert.

