                                  NO. 07-02-0255-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                 NOVEMBER 24, 2003

                         ______________________________


                            BILLY J. SKIPPER, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

             FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2001-435438; HONORABLE CECIL PURYEAR, JUDGE

                         _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION


      Billy J. Skipper challenges his conviction for aggravated sexual assault. He

presents two issues, challenging the trial court’s admission of scientific evidence and its

failure to prevent improper jury arguments by the prosecutor. Finding no reversible error,

we affirm.
       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.




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       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


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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.




       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.

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       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



                                               5
(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.




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