Opinion issued August 29, 2013




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas
                         ————————————
                            NO. 01-11-01112-CR
                         ———————————
                         R.T. HARDGE, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                    On Appeal from 180th District Court
                           Harris County, Texas
                       Trial Court Case No. 1223224



                     MEMORANDUM OPINION

     A jury convicted R.T. Hardge of capital murder and the trial court assessed
his punishment at imprisonment for life without parole. 1 In four points of error,

appellant argues that (1) the evidence is insufficient to support his conviction, (2)

the trial court erred by denying his motion to suppress the DNA comparison

results, (3) the trial court erred by denying the motion to suppress statements

appellant made to law enforcement because the statements were the product of

police coercion, and (4) the trial court erred in admitting eight photographs that

were more prejudicial than probative.

      We affirm.

                               Factual Background

      On October 31, 2008, 78-year-old Luz Marti was found sexually assaulted

and murdered in a narrow alcove between the stairs and the wall of the Sacred

Heart Co-Cathedral in downtown Houston, Texas. Marti’s body was discovered

early that afternoon by Father Bob Brooks and Diantha Brennan, an administrative

assistant for the church, who called 9-1-1. According to Brennan, Marti’s face was

badly swollen and bruised, she was partially clothed, and her genital area was

exposed.

      Brennan recognized Marti immediately because Marti was a parishioner who

had regularly attended Mass at the Co-Cathedral. Brennan testified that although

1
      See TEX. PENAL CODE ANN. § 12.31(a) (West 2011), § 19.03(a)(2) (West Supp.
      2012).


                                         2
homeless, Marti felt safe at the church and considered the church her home. Marti

often slept on the top step of the stairs next to the alcove where her body was

found. Brennan, who regularly saw Marti at Mass and spoke with her on several

occasions, testified that although Marti was homeless and appeared to have a

mental illness, she was always neat and clean and she behaved appropriately and

never gave Brennan any cause for concern. Brennan testified that Marti always

wore the same clothing (i.e., red and white checked Capri pants, white tennis

shoes, a red cotton short-sleeved shirt, and a red sweater) and always carried the

same belongings with her (i.e., a blue plastic rosary, several plastic crucifixes, two

or three scapulars,2 a Bible, a bilingual missal, a prayer book hymnal, and a red

and white plastic ankle bracelet).

      Sheridan Langford, a crime scene investigator with the Houston Police

Department, was dispatched to the church that afternoon to photograph and

videotape the crime scene. Langford testified that upon her arrival she observed

Marti, a partially clothed elderly deceased woman, lying in a small alcove between

the church’s east wall and a staircase leading to a door into the cathedral. Neither

the alcove nor the body was visible from the street, which was approximately 140

feet away.


2
      A scapular is a pair of small cloth squares joined by shoulder straps and worn
      under the clothing on the breast and back as a sacramental.

                                          3
      According to Langford, Marti was wearing a maroon sweater, a white

Adidas tennis shoe on her left foot, and a beaded ankle bracelet on her left ankle.

Marti’s pants and panties were missing and a blood stained, blue-green towel was

partially covering her body. Langford testified that although she did not know how

long Marti’s body had been in the alcove, signs of insect activity in one of Marti’s

nostrils indicated that Marti had been deceased for several hours.

      Langford also found a green rosary and a cross next to Marti’s left knee, a

second tennis shoe near Marti’s right knee, and a drawstring mesh bag with Marti’s

personal belongings next to Marti’s head. Marti’s state-issued identification card

was inside the mesh bag, along with a Bible, a bilingual missal, and a prayer book

hymnal that were wrapped up in an American flag bandana. A smaller blue bag

with various toiletry items and a bus pass belonging to Marti was also found inside

the mesh bag.

      Trace evidence analyst Diana Wolfshohl, forensic investigator Vanessa

Trevino, and HPD Investigator Arnauld Semmelrock were also dispatched to the

scene later that afternoon. Wolfshohl, who documented the physical evidence

found on or near Marti in the alcove, noticed that Marti was wearing a rosary and a

scapular around her neck. Trevino documented the severity of Marti’s injuries,

including contusions to her face, knees and thighs, hemorrhaging in her eyes, and

the bloody tears to her vaginal area.        Based on body temperature, Trevino

                                         4
estimated that she had been deceased for twelve to twenty-four hours.3

Semmelrock, one of the homicide investigators assigned to the case, testified that

the blood and evidence collected at the scene was contained in the confined space

where Marti was found, indicating that she was not moved there after she was

injured and that the entire crime took place in that area.

      After Marti’s corpse was removed from the crime scene, Langford obtained

DNA samples from the blood stains on the north and east walls of the alcove. She

also observed a sizeable bloodstain on the brick pavers underneath where Marti’s

groin had been. While performing the autopsy, Dr. Roger Mitchell collected DNA

samples from underneath Marti’s fingernails, and semen from her vagina and

rectum. This evidence resulted in a DNA profile which was entered into the

national Combined DNA Index System (CODIS).

      On January 5, 2009, Semmelrock received information that the suspect DNA

profile matched appellant, who was arrested a few days later at a McDonald’s

about one block from the crime scene and brought to the police station for

questioning. Appellant was calm and able to communicate, and he was offered

food, water. and access to the bathroom. Although appellant waived his statutory

rights and spoke with investigators, he denied being at the crime scene, committing


3
      Trevino testified that she took Marti’s body temperature at 7:15 p.m. on October
      31, 2009. Based upon Trevino’s estimate, Marti died sometime between 7 p.m. on
      October 30, 2009 and 7 a.m. the next morning.

                                           5
the crime, or knowing Marti.         Appellant also adamantly denied frequenting

downtown or associating with people who lived there. After investigators showed

appellant a photograph of Marti and told him that somebody had identified him as

being with her, appellant confidently stated that “ain’t nobody in this world gonna

say that I was with that woman right there, in this world. Nah.” Investigators also

asked appellant for a sample of his DNA in order to verify his claim that he did not

assault Marti. When appellant refused their request and told them several times

that they already had a sample of his DNA on file, investigators obtained a search

warrant authorizing them to seize a sample.

      Semmelrock also testified that in mid-February 2009 he attempted to search

appellant’s apartment, but when he arrived at the apartment complex, he

discovered that the management had just evicted appellant and discarded his

belongings in a dumpster.       Semmelrock testified that he retrieved a pair of

women’s red panties from the dumpster and submitted them for DNA testing.

      The sample of appellant’s DNA that investigators collected from appellant

was compared to the DNA evidence recovered from the scene by DNA analyst

Robin Guidry. 4 Guidry testified that appellant’s DNA could not be excluded from

the vaginal and rectal swabs, the east and north wall swabs, from the blue rosary

4
      Serologist Karen Ginco tested the evidence taken from the crime scene and
      Marti’s body, and found blood and semen on the following items: the vaginal
      swab, the rectal swab, the north wall swab, the east wall swab, the blue rosary, the
      white-laced scapular, the cross necklace, and the blue towel.
                                           6
beads and scapular worn around Marti’s neck and her beaded ankle bracelet, and

from underneath the fingernails of Marti’s left hand. Although semen was found

on the red panties, there was not enough DNA to run a comparison. Guidry

testified that the blue rosary beads that Marti was wearing around her neck had a

mixture of DNA from Marti, appellant, and another unknown individual. She also

testified that DNA analysis cannot determine when DNA was deposited on a tested

substance, and that the DNA from the third contributor could have been from the

person who originally sold the rosary to Marti.

      Dr. Mitchell, the medical examiner who performed Marti’s autopsy,

concluded that Marti was sexually assaulted at or near the time of her death, and he

ruled her death a homicide. According to Dr. Mitchell, Marti’s death was caused

by multiple acts of blunt force trauma, including a blow to her face severe enough

to fracture her nose and cause her brain to bleed, and asphyxiation due to

compression of her neck. Dr. Mitchell also testified that the strangulation marks

on Marti’s neck were in a beaded pattern consistent with the blue rosary that she

was wearing when her body was discovered.

      Dr. Mitchell testified that Marti’s vagina was torn almost to her rectum. He

also found a bruise on her rectum and another four-inch laceration or tearing of the

wall of the vagina on the left side going in towards and reaching the cervix. Dr.

Mitchell testified that these injuries were consistent with penile rape. Conceding

                                         7
that it was not possible for his examination to determine if the person who

murdered Marti also sexually assaulted her, he testified that although it was

possible that Marti’s sexual assault and murder happened at different times, it was

not probable.     Because the injuries from Marti’s sexual assault showed no

evidence of healing and were consistent with the bruises to her face, neck, and

body, Dr. Mitchell concluded that Marti was beaten, strangled, and sexually

assaulted at or near the time of her death.

                              Procedural Background

A.    Motion to Suppress Evidence

      Appellant filed a motion to suppress his DNA sample in CODIS in which he

argued that his DNA sample was obtained by law enforcement during the

investigation of a sexual assault charge against him, 5 that the charge was

subsequently dismissed and that the sample should have been destroyed thereafter

pursuant to Government Code section 411.1471(e).6 According to appellant, the

inclusion of his DNA sample in CODIS after dismissal of the prior case violated

5
      Appellant’s motion to suppress states that the DNA sample “should have been
      destroyed after the dismissal of his 1990 rape case.” This is most likely a
      typographical error because there is no reference to a 1990 sexual assault charge in
      the State’s notice of its intention to use evidence of prior convictions and
      extraneous offenses or anywhere else in the record.
6
      TEX. GOV’T CODE ANN. § 411.1471(a)(1)-(2), (e) (West 2012) (requiring
      collection of DNA specimen from defendant after indictment, or waiver of
      indictment, for certain offenses and requiring DNA specimen and record of its
      receipt be immediately destroyed if defendant acquitted or case against defendant
      dismissed).
                                              8
his right to privacy and his right to be free from unlawful searches and seizures

pursuant to the Fourth Amendment of the U.S. Constitution and article 1, section 9

of the Texas Constitution. Appellant argued that Code of Criminal Procedure

article 38.23 required the suppression of this illegally obtained DNA evidence. See

TEX. CODE CRIM. PROC. art. 38.23 (West 2005) (requiring exclusion of evidence

that was unlawfully obtained).

      At the beginning of the pre-trial suppression hearing, the State discussed

appellant’s lengthy criminal history, which included, inter alia, convictions for

burglary (1983), burglary of a habitation (1984), burglary of a building (1987 and

1988), and auto theft (1987) in which appellant was sentenced to TDCJ, and the

State acknowledged that it was “unclear about in which of these cases [appellant]

submitted his bucal swab.”7 Nevertheless, the State represented that the DNA

7
      The State’s notice of its intention to use evidence of prior convictions and
      extraneous offenses also indicates that appellant was convicted of the offense of
      unauthorized use of a motor vehicle in March 2000 and sentenced to twelve years
      in TDCJ and that appellant was on community supervision until 2011. See TEX.
      CODE CRIM. PROC. ANN. art. 42.12, § 11(j) (West Supp. 2012) (“A judge granting
      community supervision to a defendant convicted of a felony shall require that the
      defendant, as a condition of community supervision, provide a DNA sample under
      Subchapter G, Chapter 411, Government Code, for the purpose of creating a DNA
      record of the defendant, unless the defendant has already submitted the required
      sample under other state law.”)

      Since at least September 1, 2005, Government Code section 411.148 has required
      that all prison inmates provide blood samples or other specimens to be included in
      the CODIS DNA database. TEX. GOV’T CODE ANN. § 411.148(a)(1)(B), (b) (West
      2012). Although appellant was sentenced to twelve years in TDCJ in 2000, the
      record does not indicate whether appellant actually served any of this sentence.

                                          9
sample was taken lawfully and that it was appellant’s burden to prove otherwise.

The State further argued that Government Code section 411.1471(e) was

inapplicable because this section—which was enacted after appellant’s arrest for

the 1999 sexual assault case—only applies to DNA samples taken after an arrest

that occurred on or after 2002.8

      Appellant responded that his DNA sample in CODIS was apparently taken

from him in connection with a sexual assault case dismissed in 1999. Appellant,

however, did not argue at the hearing that his DNA sample should have been

removed from CODIS after the sexual assault case was dismissed in 1999 pursuant

to Government Code section 411.1471(e), 9 nor did he argue that section 411.1471

should be applied retroactively to include his DNA sample. Rather, appellant

argued that in 1999, the State was only entitled to collect DNA samples from

inmates if a court ordered the inmate to give a sample or if the inmate was serving

a sentence for sexual assault.        Appellant further contended that because his

investigator was unable to find an order “showing that he was ever ordered to give

8
      The State also argued that appellant was collaterally estopped from relitigating this
      issue because he had filed a federal lawsuit to remove his DNA sample from
      CODIS and the federal district court dismissed his complaint for failure to state a
      claim pursuant to 28 U.S.C. § 1915. In that lawsuit, appellant alleged that his
      DNA sample was unlawfully included in CODIS, in violation of state law and the
      Fourth Amendment, after his 1983 conviction for burglary of a habitation was
      overturned and he was acquitted.
9
      During the hearing, appellant’s counsel acknowledged that the dismissal of the
      sexual assault case against appellant in 1999 “was of course before the 2002
      statute.”
                                           10
a DNA sample,” “we can only assume that it was taken as a suspect.” Appellant

argued that because he was a “mere suspect” in the 1999 sexual assault case and

never convicted of that crime, the inclusion of the DNA sample acquired from him

during that investigation constituted an invasion of his right to privacy under the

Fourth Amendment.

      Appellant offered no evidence to show that the DNA sample was collected

in connection with the dismissed sexual assault case, as opposed to other of his

criminal convictions.

B.    Motion to Suppress Statements

      Appellant also filed a separate motion to suppress statements he made to law

enforcement during his videotaped interview. In his one-and-a-half page written

motion, appellant made several general allegations including, inter alia, that any

statements he made to police were “involuntary and were coerced and enticed” and

that the statements were “tainted by [his] illegal and unlawful detention and

arrest.” Appellant argued that the admission of these statements violated various

provisions of the U.S. Constitution (i.e., Fourth, Fifth, Sixth, and Fourteenth

Amendments), the Texas Constitution (i.e., Article I, sections 9 and 10), and three

articles of the Code of Criminal Procedure (i.e., art. 1.05, 38.22, and 38.23). This

motion never cites analogous case law or presents meaningful analysis applying

these legal authorities to the specific facts of his case. At the pre-trial hearing on


                                         11
his motion, the State introduced a copy of his videotaped interview and called one

of the HPD investigators present during the interrogation, Semmelrock, who

testified that appellant became a suspect in Marti’s murder when DNA taken from

the crime scene matched appellant’s DNA registered in the national CODlS

database. Semmelrock obtained an arrest warrant based on the DNA match and

after appellant was arrested on January 9, 2009, he and his partner interviewed

appellant after reading him his rights and after giving him crackers and drinks.

Appellant verbally acknowledged the rights read to him and voluntarily waived

these rights so he could give his statement. On cross-examination, Semmelrock

testified that he did not know how CODIS obtained appellant’s DNA information.

                           Sufficiency of the Evidence

      In his first point of error, appellant challenges the sufficiency of the evidence

supporting his capital murder conviction. Appellant does not, however, argue that

the evidence is insufficient to show that he sexually assaulted Marti. Rather,

appellant argues that the evidence is insufficient to show that he murdered Marti or

that the murder occurred during the course of the aggravated sexual assault.

A.    Standard of Review

      Appellant acknowledges on appeal that there is evidence that tends to show

that he murdered and sexually assaulted Marti, but he argues that the facts which

tend to show that he did not commit both the murder and sexual assault


                                         12
overwhelmingly outweigh the evidence to the contrary.        Challenges to the legal

and factual sufficiency of the evidence are reviewed by this Court under the

standard enunciated in Jackson v. Virginia, 443 U.S. 307, 318–20, 99 S.Ct. 2781,

2788–89 (1979). See Ervin v. State, 331 S.W.3d 49, 52–56 (Tex. App.—Houston

[1st Dist.] 2010, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 894–95, 912–

13 (Tex. Crim. App. 2010)).

      Under the Jackson standard, evidence is insufficient to support a conviction

if, considering all the record evidence in the light most favorable to the verdict, no

rational factfinder could have found that each essential element of the charged

offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 317–19,

99 S.Ct. at 2788–89; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).

Evidence is insufficient under this standard in four circumstances: (1) the record

contains no evidence probative of an element of the offense; (2) the record contains

a mere “modicum” of evidence probative of an element of the offense; (3) the

evidence conclusively establishes a reasonable doubt; and (4) the acts alleged do

not constitute the criminal offense charged. See Jackson, 443 U.S. at 314, 318

n.11, 320, 99 S.Ct. at 2786, 2789 & n.11; Laster, 275 S.W.3d at 518; Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

      The Jackson standard imbues to the factfinder the responsibility to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable

                                         13
inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99

S.Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); see

also Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008) (stating jury is

sole judge of credibility of witnesses and weight to give their testimony). An

appellate court presumes that the factfinder resolved any conflicts in the evidence

in favor of the verdict and defers to that resolution, provided that the resolution is

rational. See Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; see also Clayton, 235

S.W.3d at 778 (reviewing court must “presume that the factfinder resolved the

conflicts in favor of the prosecution and therefore defer to that determination”).

      Moreover, in our review of the record, direct and circumstantial evidence are

treated equally; circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt. Clayton, 235 S.W.3d at 778. In determining the

sufficiency of the evidence, a reviewing court examines “whether the necessary

inferences are reasonable based upon the combined and cumulative force of all the

evidence when viewed in the light most favorable to the verdict.” Id. (quoting

Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)). Finally, the

“cumulative force” of all the circumstantial evidence can be sufficient for a jury to

find the accused guilty beyond a reasonable doubt, even if every fact does not




                                         14
“point directly and independently to the guilt of the accused.” Powell v. State, 194

S.W.3d 503, 507 (Tex. Crim. App. 2006).

B.    Applicable Law

      A person commits capital murder if he intentionally causes the death of an

individual in the course of committing or attempting to commit an aggravated

sexual assault. See TEX. PENAL CODE ANN. §§ 19.02(b)(1), 19.03(a)(2) (West

Supp. 2011). A person commits aggravated sexual assault if he intentionally or

knowingly “causes the penetration of the anus or sexual organ of another person by

any means, without that person’s consent . . .” and “causes serious bodily injury or

attempts to cause the death of the victim . . . in the course of the same criminal

episode.” TEX. PENAL CODE ANN. §§ 22.021(a)(1)(A)(i), (2)(A)(i) (West 2011).

The Court of Criminal Appeals has defined “in the course of committing” an

offense listed in section 19.03(a)(2) as conduct occurring “in an attempt to commit,

during the commission, or in the immediate flight after the attempt or commission

of the offense.” Garrett v. State, 851 S.W.2d 853, 856 (Tex. Crim. App. 1993).

C.    Analysis

      The record reflects that Marti was found in a location not visible from the

street. Her body, swollen and bruised, was nude from the waist down and her

genital area was exposed. Investigators at the scene documented the severity of

Marti’s injuries, including contusions to her face, knees and thighs, hemorrhaging


                                        15
in her eyes, and the bloody tears to her vaginal area. They also observed blood on

the walls of the alcove and a sizeable bloodstain underneath where Marti’s groin

had been after her body was removed. All the evidence was confined to the small

alcove where Marti’s body was found, indicating that the entire crime took place in

that area and she was not moved thereafter. With the notable exception of her

pants and panties, all of Marti’s personal items were found undisturbed near her

body.

        Based on comparisons of appellant’s DNA sample with the DNA evidence

recovered from the scene, DNA analyst Guidry testified that appellant could not be

excluded from the semen found on and in Marti’s corpse, the bloodstains taken

from the east and north wall of the church, and the blue rosary used to strangle her.

This was corroborated by Dr. Mitchell’s testimony that the marks created by her

strangulation matched the beaded blue rosary Marti wore around her neck.

        Appellant nonetheless argues that the facts that tend to show that he did not

commit both the murder and sexual assault overwhelmingly outweigh the evidence

that he did. In particular, appellant relies upon (1) Guidry’s testimony that it is not

possible to determine when DNA was deposited on an item, (2) Guidry’s testimony

that some of the swabs were packaged together, which, appellant contends, means

that there could have been cross-contamination, (3) Dr. Mitchell’s testimony that

he did not know if the person who sexually assaulted Marti was the same person

                                          16
who killed her, and (4) Dr. Mitchell’s testimony that it was possible that Marti’s

sexual assault and murder happened at different times.

      Although Dr. Mitchell testified that he did not know if the person who

sexually assaulted Marti was the same person who killed her and that it was

possible that Marti’s murder happened at a different time than the sexual assault,

Mitchell also testified that the injuries Marti received from being sexually

assaulted (e.g., tears and trauma to her vagina and rectum) occurred at or near the

time of her blunt force trauma and asphyxiation injuries. He further testified that

because the injuries from Marti’s sexual assault showed no evidence of healing and

were consistent with the bruises to her face, neck, and body, he concluded that she

was beaten, strangled, and sexually assaulted at or near the time of her death. As

the sole factfinder and judge of the credibility of the witnesses and weight given to

their testimony, the jury was within its province to resolve any conflicts in the

testimony and to believe Dr. Mitchell’s testimony that the murder occurred at or

near the time of the aggravated sexual assault. See Jackson, 443 U.S. at 319, 99

S.Ct. at 2789; Clayton, 235 S.W.3d at 778; Brown, 270 S.W.3d at 568.

      Second, Guidry testified that the DNA analysis linked appellant to both the

semen found inside Marti’s vagina and rectum and the DNA on the rosary used to

strangle her. Although she acknowledged that DNA analysis could not determine

precisely when appellant deposited the DNA, viewed in the light most favorable to

                                         17
the verdict, it was reasonable for the jury to infer from both Guidry’s and Dr.

Mitchell’s testimony that the murder occurred at or near the time of the aggravated

sexual assault and that appellant left his DNA at the crime scene at or near the time

he murdered Marti. See Clayton, 235 S.W.3d at 778.

      Third, contrary to appellant’s assertion, Guidry’s acknowledgement that

some swabs were packaged together does not suggest the possibility of cross-

contamination.   Guidry, who testified at length regarding the safeguards and

controls followed by her and the crime laboratory, stated that “[s]wabs from the

same item will be packaged together, because they are the same item. We treat

them as the same item.” Guidry further explained that “all the vaginal swabs are

received packaged together, all of the rectal swabs were received packaged

together. The necklace swabs that were from different necklaces would have been

packaged separately.”

      In sum, the evidence presented at trial supported the jury’s verdict that

appellant murdered Marti during the course of committing aggravated sexual

assault, where the medical examiner testified that the murder occurred at or near

the time of the aggravated sexual assault, and appellant’s DNA linked him to the

sexual assault and the rosary used to strangle Marti. See Powell, 194 S.W.3d at

507 (stating it is not necessary that every fact point directly and independently to

defendant’s guilt if conclusion is warranted by their combined and cumulative

                                         18
force). When the evidence is viewed in a light most favorable to the verdict, the

jury reasonably could have inferred that appellant murdered Marti during the

course of committing aggravated sexual assault, and found the elements of capital

murder beyond a reasonable doubt. Jackson, 443 U.S. at 319; see also Muniz v.

State, 851 S.W.2d 238, 249 (Tex. Crim. App. 1993) (finding evidence sufficient to

support defendant’s conviction for capital murder where factor that made sexual

assault aggravated caused victim’s death).

      We overrule appellant’s first point of error.

Motions to Suppress—Evidence of DNA Comparison and Statements to Law
                            Enforcement

      In his second and third points of error, appellant contends that the trial court

erred by denying his motions to suppress his DNA sample in CODIS and

statements he made to law enforcement during a videotaped interview.

A.    Preservation of Error

      A motion to suppress is a specialized objection to the admission of evidence.

Rothstein v. State, 267 S.W.3d 366, 373 (Tex. App.—Houston [14th Dist.] 2008,

pet. ref’d). “[A] complaint is not preserved for appeal unless it was made to the

trial court ‘by a timely request, objection or motion’ that ‘stated the grounds for the

ruling that the complaining party sought from the trial court with sufficient

specificity to make the trial court aware of the complaint, unless the specific



                                          19
grounds were apparent from the context.’” Resendez v. State, 306 S.W.3d 308, 312

(Tex. Crim. App. 2009) (quoting TEX. R. APP. P. 33.1); see also TEX. R. EVID. 103.

      To preserve error, a party “must be specific enough so as to ‘let the trial

[court] know what he wants, why he thinks himself entitled to it, and do so clearly

enough for the judge to understand him at a time when the trial court is in a proper

position to do something about it.’”     Resendez, 306 S.W.3d at 313 (quoting

Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). A party fails to

preserve error when the contention urged on appeal does not comport with the

specific complaint made in the trial court. See Rothstein, 267 S.W.3d at 373.

      We consider the context of the complaint to determine if the party preserved

error. See Resendez, 306 S.W.3d at 313. Accordingly, we review appellant’s

motion to suppress and the suppression hearing to determine if the complaint was

apparent from the context. See id. at 314–16; Rothstein, 267 S.W.3d at 374–75 &

n.5. If the correct ground for exclusion was obvious to the trial court and opposing

counsel, waiver will not result from a general or imprecise objection. Zillender v.

State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). However, if the context

shows that a party failed to effectively communicate his argument, then the error is

deemed waived on appeal. Lankston, 827 S.W.2d at 909.

      “Global statements” in a written motion to suppress are not sufficient to

preserve arguments for appeal. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim.

                                        20
App. 2005) (citing TEX. R. APP. P. 33.1). Therefore, a party waives error when (1)

a suppression motion makes global arguments citing little more than constitutional

and statutory provisions and (2) the party fails to argue any specific grounds for

suppressing evidence at the suppression hearing. See Swain, 181 S.W.3d at 365.

B.    Standard of Review

      The appropriate standard for reviewing a trial court’s ruling on a motion to

suppress evidence is bifurcated, giving almost total deference to a trial court’s

determination of historical facts and reviewing de novo the court’s application of

the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). We must

“afford the same amount of deference to [a] trial courts’ rulings on application of

law to fact questions, also known as mixed questions of law and fact, if the

resolution of those ultimate questions turns on an evaluation of credibility and

demeanor.” Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (internal

quotations omitted). We conduct a de novo review when the resolution of mixed

questions of law and fact do not turn on an evaluation of credibility and demeanor.

See id.

      In determining whether a trial court’s decision is supported by the record, we

generally consider only the evidence adduced at a suppression hearing unless the

parties consensually re-litigate the issue at trial, in which case we also consider

relevant trial testimony. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App.


                                        21
1996). We give almost total deference to a trial court’s determination of historical

facts, especially if those determinations turn on witness credibility or demeanor,

and review de novo the trial court’s application of the law to facts not based on an

evaluation of credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex.

Crim. App. 2008). At a suppression hearing, a trial court is the sole and exclusive

trier of fact and judge of the witnesses’ credibility. Maxwell, 73 S.W.3d at 281.

Accordingly, a trial court may choose to believe or to disbelieve all or any part of a

witness’s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

C.    Evidence of DNA Comparison

      In his second point of error, appellant argues that his DNA sample was

obtained by law enforcement during the investigation of a sexual assault charge

against him, and that the sample and profile should have been destroyed after the

charge was dismissed in 1999 pursuant to Government Code section 411.1471.

Appellant further contends that because his DNA profile was unlawfully in CODIS

pursuant to Government Code section 411.1471(e), the trial court erred by denying

his motion to suppress the DNA comparison results derived from his CODIS

profile pursuant to Code of Criminal Procedure 38.23. See TEX. CODE CRIM. P.

38.23 (requiring exclusion of evidence that was unlawfully obtained).

      Section 411.1471(b) sets out that after a defendant has been indicted or has

waived indictment for one of several felony offenses, including sexual assault, the


                                         22
court in which the case is pending shall require the defendant to provide “one or

more specimens for the purpose of creating a DNA record.” TEX. GOV’T CODE

ANN. § 411.1471(b) (West 2012). Section 411.1471(e) further provides that if that

defendant is later acquitted or the case against him is dismissed, the “the court shall

order the law enforcement agency taking the specimen to immediately destroy the

record of the collection of the specimen and require the department to destroy the

specimen and the record of its receipt.” Id. at § 411.1471(e) (West 2012). This

section, which went into effect on September 1, 2001, only applies “to a defendant

arrested on or after February 1, 2002.” Act of June 17, 2001, 77th Leg., ch. 1490

§§ 2, 9 (amended 2007, 2011) (current version at TEX. GOV’T CODE ANN.

§ 411.1471).

      A defendant who moves for suppression under article 38.23 due to the

violation of a statute has the burden of producing evidence of a statutory violation.

State v. Robinson, 334 S.W.3d 776, 778–79 (Tex. Crim. App. 2011) (citing Pham

v. State, 175 S.W.3d 767, 772 (Tex. Crim. App. 2005)). Only when this burden is

met does the State bear a burden to prove compliance. Robinson, 334 S.W.3d at

778–79. This procedure is substantially similar to that required when there is a

motion to suppress under the Fourth Amendment, but it is a separate inquiry based

on separate grounds. Id.




                                          23
      First, although appellant raised two bases for suppression of the DNA profile

in his written motion (i.e., Government Code section 411.1471/Code of Criminal

Procedure article 38.23 and the right to be free from unlawful searches and

seizures pursuant to the Fourth Amendment of the U.S. Constitution and article 1,

section 9 of the Texas Constitution), he only argued at the suppression hearing that

the inclusion of his DNA profile violated the Fourth Amendment. Specifically,

appellant argued that because he was a “mere suspect” in the 1999 sexual assault

case and he was never convicted of that crime, the inclusion of the DNA sample

acquired from him during the course of that investigation constituted an invasion

of his rights under the Fourth Amendment.10 Appellant did not argue at the

hearing that his DNA should have been suppressed under Code of Criminal

Procedure article 38.23 because it was included in CODIS in violation of

Government Code section 411.1471. In fact, appellant seemingly abandoned this

argument when he acknowledged during the hearing that Government Code

section 411.1471 was not enacted until after the sexual assault case was dismissed.

See Rothstein, 267 S.W.3d at 373 (stating party fails to preserve error when

contention urged on appeal does not comport with specific complaint made in trial

court).

10
      Appellant does not argue on appeal that the inclusion of his DNA information in
      CODIS is a violation of his Fourth Amendment rights. As such, he has not
      preserved this issue for our review. See TEX. R. APP. P. 38.1(i).

                                         24
      Second, even if appellant preserved this issue for our review, the trial court

did not abuse its discretion when it denied appellant’s motion to suppress based on

Code of Criminal Procedure article 38.23 and Government Code section 411.1471

because appellant did not produce evidence of a statutory violation. Robinson, 334

S.W.3d at 778–79 (stating defendant who moves for suppression under article

38.23 due to violation of statute has burden of producing evidence of statutory

violation). Although appellant argued at the suppression hearing and on appeal

that his DNA sample in CODIS was apparently taken from him in connection with

the sexual assault case that was dismissed in 1999, he offered no evidence as to

when his DNA sample was actually acquired by law enforcement. Id. The record

reflects that among appellant’s history of arrests and convictions was the offense of

unauthorized use of a motor vehicle in March 2000 for which he was sentenced to

twelve years in TDCJ and that appellant was on community supervision until 2011.

See generally TEX. GOV’T CODE ANN. § 411.148(a)(1)(B), (b) (section enacted in

2005 requiring all prison inmates to provide blood samples or other specimens to

be included in CODIS DNA database); TEX. CODE CRIM. PROC. ANN. art. 42.12,

§ 11(j) (West Supp. 2012) (“A judge granting community supervision to a

defendant convicted of a felony shall require that the defendant, as a condition of

community supervision, provide a DNA sample under Subchapter G, Chapter 411,

Government Code, for the purpose of creating a DNA record of the defendant,

                                         25
unless the defendant has already submitted the required sample under other state

law.”). If appellant’s DNA was acquired during either of these interactions (or if

he voluntarily gave a sample in order to be excluded as a suspect in another crime),

Government Code section 411.1471(e) would not require the destruction of the

DNA specimen and profile. Moreover, even if appellant established that his DNA

was acquired in connection with the 1999 sexual assault case, appellant did not

establish that Government Code section 411.1471 required the removal of his

DNA from CODIS, particularly in light of appellant’s acknowledgement that

Government Code section 411.1471 was not enacted until after the sexual assault

case was dismissed in 1999. (“This was of course before the 2002 statute.”)

Thus, appellant failed to produce evidence of a statutory violation. See Robinson,

334 S.W.3d at 778–79.

      Although appellant argues on appeal that Government Code section

411.1471 applies to DNA specimens taken before the section’s effective date of

September 1, 2001, and that the application of this section retroactively does not

violate the prohibition against ex post facto laws, appellant did not raise this

argument in his written motion to suppress or during the suppression hearing.

Accordingly, even were it necessary to reach this issue, appellant’s argument that

Government Code section 411.1471 should be applied retroactively to bar the State




                                        26
from using the DNA comparison results derived from his CODIS profile has not

been preserved for our review.

      Appellant further argues that the trial court’s denial of his motion to

suppress was error because the State presented no evidence that his DNA sample

was properly taken “in contravention of a state statute which requires a court order

for the taking.” However, because appellant moved for suppression under article

38.23 due to the violation of a statute, he had the burden of producing evidence of

a statutory violation. Robinson, 334 S.W.3d at 778–79. Since Appellant did not

meet his burden, the burden never shifted to the State to prove compliance. Id.

      We overrule appellant’s second point of error.

D.    Statements to Law Enforcement

      In his third point of error, appellant contends that the trial court erred in

denying his motion to suppress statements he made to law enforcement during a

videotaped interview because the statements were “rendered involuntary from [the

officers’] coercion.”

      Appellant does not articulate a factual basis for his coercion claim or

identify any coercive tactics allegedly employed by the officers, either in his

appellate brief or at the trial court level. In his one-and-a-half-page motion to

suppress, appellant makes several generalized allegations including, inter alia, that

any statements he made to police were “involuntary and were coerced and enticed”


                                         27
and that the statements were “tainted by [his] illegal and unlawful detention and

arrest.” At the suppression hearing, appellant did not argue that his statements

were involuntary or coerced, nor did he attempt to elicit testimony supporting this

allegation. Instead, appellant focused his attention on proving another ground for

suppression (i.e., that the statements were the fruit of his illegal and unlawful

detention and arrest and should be suppressed under Code of Criminal Procedure

article 38.23). See TEX. CODE CRIM. P. art. 38.23 (requiring exclusion of evidence

that was unlawfully obtained).        In fact, appellant devoted his entire cross-

examination of Officer Semmelrock—one of the officers who conducted the

interrogation and the only witness to testify at the hearing—to the facts underlying

the identification of appellant as a suspect (i.e., the discovery that appellant’s DNA

profile in CODIS matched DNA taken from the crime scene).

      We note that the section of appellant’s brief that addresses his third point of

error contains no citations to the record or any meaningful analysis of the cited

legal authorities to the specific facts of his case. As such, appellant’s third point of

error was inadequately briefed. See TEX. R. APP. P. 38.1(i). However, even if

appellant had adequately briefed this point of error, he would still not be entitled to

relief. After reviewing appellant’s written motion to suppress and the transcript of

the suppression hearing, we hold that appellant failed to preserve for our review his

argument that his statements to law enforcement were coerced, and therefore

                                          28
involuntary, and should have been excluded under Code of Criminal Procedure

article 38.23. See Swain, 181 S.W.3d at 365 (holding party waives error when

suppression motion makes global arguments citing little more than constitutional

and statutory provisions and party fails to argue specific ground for suppressing

evidence at suppression hearing); Lugo v. State, 299 S.W.3d 445, 450 (Tex.

App.—Fort Worth 2009, pet. ref’d) (“[T]he complaint made on appeal must

comport with the complaint made in the trial court or the error is forfeited.”).

      We overrule appellant’s third point of error.

E.    Admission of Crime Scene Photographs

      In his fourth point of error, appellant contends that the trial court erred by

admitting eight crime scene photographs of Marti (State’s Exhibits 20 and 59–65)

in violation of Rule of Evidence 403.           According to appellant, all eight

photographs were gruesome in nature and should have been excluded on the basis

that they were more prejudicial than probative. TEX. R. EVID. 403.

      1.     Standard of Review and Applicable Law

      Rule of Evidence 403 provides that relevant evidence “may be excluded if

its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue

delay, or needless presentation of cumulative evidence.” TEX. R. EVID. 403. We

review the trial court’s ruling on admissibility of the photographs under an abuse


                                          29
of discretion standard and will not reverse the trial court’s ruling unless it falls

outside the zone of reasonable disagreement. See Young v. State, 283 S.W.3d 854,

874 (Tex. Crim. App. 2009); see also Sonnier v. State, 913 S.W.2d 511, 518 (Tex.

Crim. App. 1995).

      When determining whether the trial court erred in admitting relevant

photographs into evidence, our review is limited to determining whether the

probative value of the photos is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay or needless presentation of cumulative evidence. Young, 283 S.W.3d

at 874; TEX. R. EVID. 403.

      Our analysis under Rule 403 includes, but is not limited to, the following

factors: (1) the probative value of the evidence, (2) the potential to impress the jury

in some irrational yet indelible way, (3) the time needed to develop the evidence,

and (4) the State’s need for the evidence. Hernandez v. State, 390 S.W.3d 310,

324 (Tex. Crim. App. 2012); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim.

App. 2006). In determining whether the probative value of a photograph is

substantially outweighed by the danger of unfair prejudice, we also consider “the

number of exhibits offered, their gruesomeness, their detail, their size, whether

they are in color or black-and-white, whether they are close-up, whether the body

depicted is clothed or naked, the availability of other means of proof, and other

                                          30
circumstances unique to the individual case.” Williams v. State, 301 S.W.3d 675,

690 (Tex. Crim. App. 2009).

      2.    Analysis

      The eight photographs admitted were in conjunction with the testimony of

forensic investigator Vanessa Trevino and HPD Officer Sheridan Langford, a

crime scene investigator who, together with Trevino, documented the crime scene

and the extent of Marti’s injuries. Although the photographs included in the

appellate record are black and white, it appears from the reporter’s record that

color photos were admitted into evidence and that these were displayed in the

courtroom on an overhead projector.

      State’s Exhibit 20 shows Marti’s partially-clad body lying on the floor of the

narrow alcove, wearing a sweater, one tennis shoe, and an ankle bracelet. Officer

Langford used Exhibit 20 to explain the position of Marti’s body when she was

found and other objects found in the alcove, including a second tennis shoe, rosary

beads, a necklace with a crucifix, a drawstring mesh bag that contained Marti’s

belongings, and a blue-green towel. Brennan, the administrative assistant who

discovered Marti’s body and called 9-1-1, also used Exhibit 20 to explain to the

jury the location and condition of Marti’s body when she was found.

      State’s Exhibits 59–65 are close-up photographs of Marti’s body that show

what forensic investigator Trevino observed at the crime scene. In particular,


                                        31
Exhibit 59 is a close-up of Marti’s face and neck that shows contusions on the right

side of her face and on her right eye, as well as the rosary that was used to strangle

her. Exhibit 60 is a close-up photograph of Marti’s eye and eyelid that shows

petechial hemorrhaging which, according to Trevino, indicates “some type of

obstruction or trauma to the airway or blunt force impact.” Exhibits 61 and 62 are

close-up photographs of the front of Marti’s bare legs and thighs that show

contusions and abrasions on both of her knees, blood on her upper thigh, and

multiple contusions on her upper thigh. Exhibit 63 is a close-up photograph of

Marti’s genital area that shows blood on the upper inside of the thigh as well as on

her buttocks. Exhibit 64 is a photograph that was taken after Marti’s body was

removed from the alcove and placed on a body bag. The photograph shows dirt on

Marti’s bare lower back. Exhibit 65 is a close-up photograph of blood, fecal

matter, and other materials on Marti’s bare buttocks and the backside of her upper

thighs.

      All eight photographs are probative because they are accurate depictions of

both the crime scene and Marti’s body that would assist a jury to visualize the

crime scene as well as the extent of Marti’s injuries, and they corroborate

Langford’s, Trevino’s, and Brennan’s observations of the crime scene and Marti’s

injuries. See Williams, 301 S.W.3d at 691 (photographs were probative because

they depicted both crime scene and victim’s injuries); Chamberlain v. State, 998

                                         32
S.W.2d 230, 237 (Tex. Crim. App. 1999) (affirming admission of crime scene

photos corroborating witness testimony).         Exhibits 59 and 60, which show

contusions to Marti’s face and petechial hemorrhaging in one of her eyes, are also

probative because they corroborate the medical examiner’s testimony regarding

Marti’s cause of death (i.e., blunt force trauma to the head and strangulation). See

Chamberlain, 998 S.W.2d at 237. Exhibits 61–65 are also probative of sexual

assault and murder because they depict the force used against Marti and the extent

of the injuries inflicted upon her during that assault.

      There were no eyewitnesses to the murder and sexual assault, and thus, aside

from these photographs, the only other evidence available to the State to establish

the condition of Marti’s body, the force used against Marti, and the extent of the

injuries inflicted upon her during that assault was the testimony of the various

witnesses present at the crime scene and the medical examiner. The witnesses’

testimony is undeniably enhanced by the corroborating photos. See Chamberlain,

998 S.W.2d at 237 (“Visual evidence accompanying testimony is most persuasive

and often gives the fact finder a point of comparison against which to test the

credibility of a witness and the validity of his conclusions.”).

      These photographs are relevant and probative, and although disagreeable to

look at, there is nothing in the record to suggest that these photographs were

“offered solely to inflame the minds of the jury.” Erazo v. State, 144 S.W.3d 487,

                                           33
491–92 (Tex. Crim. App. 2004) (“If a photograph is competent, material and

relevant to the issue on trial, it is not rendered inadmissible merely because it is

gruesome or might tend to arouse the passions of the jury, unless it is offered

solely to inflame the minds of the jury.”) As such, we cannot conclude that the

images appealed only to the jury’s emotional side and that the jury’s decision was

based on emotion rather than the relevant evidence introduced at trial. Finally,

considering the length of the trial, the State took a reasonable amount of time

before the jury to lay the foundation for the photographs and introduce them into

evidence.

      Unquestionably disagreeable to look at, these photographs are highly

probative and they depict nothing more than the reality of the brutal crimes

committed against Marti. See Shuffield, 189 S.W.3d at 788 (holding court did not

abuse its discretion by admitting photographs that only showed complainant’s

injuries and were no more gruesome than expected); Sosa v. State, 230 S.W.3d

192, 196 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (stating prejudice

caused by photographs did not substantially outweigh their probative value;

photographs were no more gruesome than facts of offense).           Considering the

probative value of the evidence, the potential to impress the jury in some irrational

yet indelible way, the time needed to develop the evidence, and the State’s need for

the evidence, we cannot say that the trial court abused its discretion when it

                                         34
determined that the probative value of these photographs outweighed their

prejudicial impact. See Hernandez, 390 S.W.3d at 324; Shuffield, 189 S.W.3d at

787.

       Appellant’s fourth point of error is overruled.

                                     Conclusion

       We affirm the trial court’s judgment.




                                               Jim Sharp
                                               Justice


Panel consists of Chief Justice Radack and Justices Sharp and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




                                          35
