                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00290-CR


JAY THAYER WILLIAMS                                                 APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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      A jury convicted Appellant Jay Thayer Williams of capital murder, and the

trial court sentenced him to life imprisonment. Appellant brings three points on

appeal, challenging the sufficiency of the evidence and contending that the trial

court abused its discretion by admitting testimony and exhibits regarding his

known fingerprints seized in 1983 and by allowing testimony comparing the


      1
       See Tex. R. App. P. 47.4.
known fingerprints to latent fingerprints collected at the crime scene. Because

the trial court committed no reversible error and because the evidence is

sufficient to support the jury’s verdict, we affirm the trial court’s judgment.

Statement of Facts

      Charles and Sandra Martin lived in Fort Worth with their two children. In

September 1986, they put their house up for sale, advertising it by way of a “For

Sale” sign placed in their front yard. On September 22, 1986, Charles called

home to speak to his wife. His five-year-old son answered the phone and told his

father that Sandra was in the “other room and the door [was] locked.” A few

minutes later, Charles called home again. His son again answered the phone

and stated that Sandra was in the “other room and the door [was] locked,” and,

when questioned by his father whether anyone had been to the house, added

that a man had come to look at the house.

      Charles left work and went home, where he found the bedroom door

closed and locked. Charles knocked on the door and then broke the door open.

Inside, he found Sandra dead on the floor beside the bed with duct tape around

her head. Her hands were bound together with duct tape; her ankles were also

bound with duct tape but were not bound together. Her skirt was pulled up, and

her underwear was pulled down around her right ankle. Charles pulled some of

the duct tape away from Sandra’s nose and called the police.

      The police found a pillow with a bullet hole in it next to Sandra’s body. The

autopsy found that Sandra had died from acute cerebral laceration and


                                           2
intracranial hemorrhage caused by a gunshot wound to the head. Bruising on

her thyroid and hemorrhaging within the strap muscles of her neck indicated that

before being shot, Sandra had been strangled.

        Crime scene officer Jim Varnon of the Fort Worth Police Department

(FWPD) removed the duct tape from Sandra’s body and was eventually able to

separate the layers of tape to recover prints from parts of the tape that had been

covered by other layers. Over the years, the fingerprints were submitted to the

Texas      Department   of   Public   Safety’s   (TDPS’s)   Automatic   Fingerprint

Identification System (AFIS) six separate times but yielded no positive results.

        In 2009, Detective Jose Hernandez of the FWPD’s cold case unit began

reviewing the Martin case. He again submitted the fingerprints to AFIS, as well

as to the FBI’s fingerprint database. No matches were found.

        Hernandez then decided to physically take the prints to TDPS’s latent print

section in Austin. About three weeks later, that lab gave him Appellant’s name

and other information that prompted him to make contact with the Temple Police

Department. The record does not indicate exactly what information Hernandez

received or exactly from whom he received it because the trial court sustained

Appellant’s hearsay objection when Hernandez seemed about to testify on that

subject.

        Hernandez traveled to Temple, where he met with that police department’s

records custodian Skip Carmouche. From Carmouche, Hernandez obtained a

fingerprint card containing Appellant’s fingerprints, collected in connection with


                                          3
his 1983 arrest in Temple for driving with a suspended license. Hernandez then

drove back to Fort Worth and submitted the Temple fingerprint card to the FWPD

crime lab’s latent print examiner. Results from the crime lab led Hernandez to

obtain a warrant for Appellant’s arrest for Sandra’s murder.

        Before trial, the State moved to retake Appellant’s fingerprints because the

police officer who had originally taken his prints upon his arrest for Sandra’s

murder was no longer employed by FWPD. To avoid having to call the former

employee as a witness at trial to testify about the fingerprints, the State wanted to

retake Appellant’s prints so that a current FWPD employee could testify about

them. Appellant objected under the Fourth Amendment to the U.S. Constitution

and article one, section nine of the Texas Constitution. The trial court allowed

the fingerprinting but granted Appellant a running objection at trial to the use of

them.

        At trial, Appellant objected when the State moved to admit the Temple

fingerprint card. Appellant objected on relevance grounds and further argued

that the fingerprints were taken when he was under arrest, in violation of the

Fourth Amendment to the U.S. Constitution and article one, section nine of the

Texas Constitution, and that the State was attempting to introduce evidence in

violation of article 38.23 of the code of criminal procedure.

        The trial court initially sustained Appellant’s Fourth Amendment objection

after a hearing, but after a later hearing, the trial court overruled Appellant’s

objections. The trial court granted Appellant a running objection to the evidence.


                                          4
      When the State later offered the Temple fingerprint card during

Hernandez’s testimony, Appellant objected that the fingerprint card was hearsay

and that it violated his Sixth Amendment right to confrontation because he did not

have the opportunity to confront and cross-examine the person who obtained the

prints. He also reasserted his Fourth Amendment and article one, section nine

objections. The trial court conditionally admitted the fingerprint card but on the

next day admitted the fingerprint card for all purposes, stating that Appellant’s

prior objections were reconsidered, still overruled, and running.

      James Freed, a fingerprint analyst with the FWPD, testified that six

fingerprints taken from the duct tape matched those on the fingerprint card from

Temple.    He then testified about State’s Exhibits 68–73, each of which, he

testified, had an enlarged photo of one of the prints from the fingerprint card and

of one of the prints from the duct tape.

      Appellant recalled Freed in his defense.        During his testimony, Freed

stated that his earlier testimony regarding State’s Exhibit 73 was incorrect, in that

the left thumbprint he had matched to the duct tape was actually not from the

Temple fingerprint card. In a hearing outside the presence of the jury, the State

produced DPS records of a 1981 Dallas arrest of Appellant. Freed stated that he

had used a print taken at the time of this Dallas arrest for State’s Exhibit 73, not

the Temple fingerprint card.

      Appellant moved to strike, stating, “I move that that would be removed

from evidence, Your Honor, be stricken from the record and the jury admonished


                                           5
not to consider that which was offered and introduced from—by Mr. Freed as a

Temple print when, in fact, it’s not.” The State offered to strike the exhibit and to

strike the testimony regarding “the print appearing under the title ‘Left Thumb

[Appellant].’” The following exchange then occurred:

      THE COURT: All right. Then the hearing is over. Defense motion
      granted.

      [Defense Counsel]: [The prosecutor] moved to—he moved to strike
      the testimony about it. I don’t want to strike the testimony. I just
      want you to instruct the jury not to consider it. Take it out and tell
      them not to consider it.

      THE COURT: Take out that exhibit and any testimony concerning
      that exhibit. Am I understanding correctly?

      [Defense Counsel]: No, just the exhibit. I would like to be able to
      harp on the fact that he continually professed perfection and that—

      THE COURT: I got you. I see what you’re saying. And I was
      thinking specifically of testimony as to a specific comparison. But if
      you’re moving to strike the—

      [Defense Counsel]: Let me withdraw my motion to strike it.

      THE COURT: Okay.

      On questioning by the State in front of the jury, Freed acknowledged that

the left comparison thumbprint was not taken from the Temple fingerprint card

but stated that it was Appellant’s left thumbprint, just taken from a different

sample. Appellant did not timely object to this testimony.

      The jury found Appellant guilty and assessed punishment of life

imprisonment. The trial court sentenced him accordingly.




                                         6
Sufficiency of the Evidence

      In his third point, Appellant challenges the sufficiency of the evidence to

support his conviction.      In our due-process review of the sufficiency of the

evidence to support a conviction, we view all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. 2 This

standard gives full play to the responsibility of the trier of fact to resolve conflicts

in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts. 3

      The trier of fact is the sole judge of the weight and credibility of the

evidence. 4 Thus, when performing an evidentiary sufficiency review, we may not

re-evaluate the weight and credibility of the evidence and substitute our judgment

for that of the factfinder. 5      Instead, we determine whether the necessary

inferences are reasonable based upon the cumulative force of the evidence




      2
        Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Wise
v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).
      3
      Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Blackman v. State, 350
S.W.3d 588, 595 (Tex. Crim. App. 2011).
      4
      See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise, 364
S.W.3d at 903.
      5
       Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).



                                           7
when viewed in the light most favorable to the verdict. 6 We must presume that

the factfinder resolved any conflicting inferences in favor of the verdict and defer

to that resolution. 7

       The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor. 8

       Appellant argues that the evidence is insufficient to support the jury’s

verdict that he is guilty of intentionally causing Sandra’s death by shooting her

with a deadly weapon, to wit: a firearm, in the course of committing or attempting

to commit aggravated sexual assault of her. Specifically, Appellant challenges

the evidence that he was in the course of committing or attempting to commit

aggravated sexual assault. He argues that the only evidence that he was in the

course of committing or attempting to commit the offense of aggravated sexual

assault of Sandra was the fact that she was discovered with her panties around

her ankle. There was no evidence of trauma to her genital area, nor evidence of

third-party DNA.        Appellant points out that the crime scene officer, Varnon,

testified that he saw no indication of a completed sexual assault. Hernandez


       6
        Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011).
       7
        Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903.
       8
      Isassi, 330 S.W.3d at 638; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007).



                                           8
testified that there was no forensic evidence to support the theory that Sandra

had been sexually assaulted at the time of her death. Nor was there evidence of

a struggle, either from an examination of the undisturbed bed or from the Martins’

five-year-old son’s testimony that he heard no noise coming from the bedroom.

Appellant argues that, although the evidence may provide a strong suspicion that

the assailant possessed sexual intent, there is no evidence proving an attempted

penetration of Sandra’s female sexual organ, mouth, or anus.

     The State points to the testimony of Dr. Marc Krause, the deputy medical

examiner who performed the autopsy on Sandra’s body. When asked about the

lack of physical evidence of sexual assault at trial, he testified that, although he

did not find evidence of genital trauma, in his opinion the evidence did not

exclude the possibility of sexual assault. The State also points out that although

Appellant argues that there is no evidence of attempted penetration or evidence

that his acts amounted to more than mere preparation that tended, but failed, to

effect commission of the intended offense, “Appellant’s argument ignores

methods other than penile penetration by which sexual assault may occur . . . . ”

      Neither the law nor any allegation in the indictment requires proof of a

completed sexual assault. The State was required to prove only that Appellant

intentionally caused Sandra’s death in the course of committing or in the course

of attempting to commit the offense of sexual assault. That is, the State was

required only to prove that Appellant intentionally caused Sandra’s death in the

course of doing an action that amounted to more than mere preparation that


                                         9
tended but failed to effect the commission of the sexual assault. 9 Sexual assault

may occur by any genital or anal penetration or by causing the genitals of the

assailant to penetrate the mouth of the complainant or by causing the genitals of

the complainant to penetrate the mouth of the assailant. 10

      Appellant was in a locked room with Sandra for an extended period of

time. She was found lying on the floor of her bedroom, next to her bed. Her skirt

was pulled up to her hips; her panties were pulled down around her right ankle.

Duct tape bound her wrists and each ankle, but the ankles were not bound

together. Her head was wrapped in duct tape that covered her eyes, nose, and

mouth. A piece of duct tape was also found attached to one of the bedposts.

Although Sandra’s purse and credit card had been taken, her Rolex watch, gold

necklace, gold bracelet, and gold earrings were still on her body. Various police

officers testified that the crime scene they viewed suggested sexual assault to

them. Further, the fact that expensive jewelry was left on the body appeared to

rule out robbery as a motive. Additionally, a motive need not be exclusive. 11 The



      9
       See Hackbarth v. State, 617 S.W.2d 944, 946 (Tex. Crim. App. 1981).
      10
          Tex. Penal Code Ann. § 22.011(a)(1)(A–C) (West 2011).
      11
        See Nelson v. State, 848 S.W.2d 126, 132 (Tex. Crim. App. 1992)
(holding that even if jury believed that defendant killed the complainant because
the complainant looked at him with desire, the jury could also believe that
defendant killed the complainant in the course of committing robbery), cert.
denied, 510 U.S. 830 (1993).



                                        10
fact that something may have been stolen does not rule out murder in the course

of attempting or committing a sexual assault.

      As the Texas Court of Criminal Appeals explained in Swearingen v. State,

      Based on the circumstantial evidence in the multitude of possible
      scenarios suggested by the physical evidence, a rational jury could
      have entertained reasonable doubt regarding [Appellant’s] guilt. The
      question, however, is whether a rational jury would have necessarily
      entertained a reasonable doubt regarding the aggravating elements
      of the offense. 12

      Following the Swearingen court, 13 we hold that the evidence is not so

obviously weak that a rational jury would necessarily have entertained a

reasonable doubt that Appellant intended to sexually assault the complainant and

that he attempted to do so. We overrule Appellant’s third point.

Admissibility of Fingerprint Exhibits and Testimony

      In his first and second points, Appellant argues that the trial court abused

its discretion by admitting testimony and exhibits regarding his known fingerprints

on the Temple fingerprint card and by admitting testimony comparing his known

fingerprints to latent fingerprints collected at the scene of Sandra’s murder.

      The State argues that Appellant failed to preserve his first and second

points by withdrawing his motion to strike State’s Exhibit 73 and the erroneous

testimony regarding the origin of Appellant’s known left thumbprint on that


      12
        101 S.W.3d 89, 96 (Tex. Crim. App. 2003).
      13
        See id.



                                         11
exhibit.    While Appellant did withdraw his motion to strike the exhibit, his

discussions with the trial court in the voir dire hearing indicate that he never

moved to strike the testimony; defense counsel wanted the jury to hear it and he

wanted to “harp on the fact that [Freed] continually professed perfection.” It was

the prosecutor who had moved to strike the testimony.

       Nevertheless, after the voir dire hearing, the prosecutor established on

cross-examination before the jury that Freed had matched Appellant’s known left

thumbprint from a different sample than the Temple fingerprint card to a latent left

thumbprint found at the murder scene. Appellant did not timely object to this

testimony. The erroneous admission of evidence will not require reversal when

other such evidence is admitted without objection. 14 Accordingly, we agree with

the State in part. That is, we agree that Appellant failed to preserve a complaint

regarding evidence of his left thumbprint.

       Regarding Appellant’s remaining challenges to the fingerprint evidence, we

believe that he sufficiently communicated his confrontation objection to the trial

court regarding both the physical fingerprint evidence and Freed’s testimony

about it and that he received an unfavorable ruling. We will therefore address

Appellant’s remaining challenges on their merits.




       14
        Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); Leday v.
State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).



                                        12
      Appellant argues that testimony regarding the known prints by a person

who did not take the prints is a denial of his Sixth Amendment right to

confrontation. 15   We disagree.       The right of confrontation applies only to

testimonial statements. 16      A statement is testimonial when made “under

circumstances which would lead an objective witness reasonably to believe that

the statement would be available for use at a later trial.” 17          The taking of

fingerprints is not the same as scientific testing. It is more similar to taking a

photograph, handwriting, drawing a picture, or recording a voice exemplar. That

is, a fingerprint card is not testimonial unless it contains testimonial notations. 18

      The Texas Court of Criminal Appeals has stated that certain things, such

as a person’s voice, appearance, and fingerprints, are not testimonial. Neither is

there any expectation of privacy in voice or features or handwriting that a person

routinely presents to the public.       Specifically, the Texas Court of Criminal

Appeals has explained,

      In Olson v. State, this Court held that compelling a handwriting sample
      from a defendant does not constitute compelling an accused to “give
      evidence against himself” in violation of the Texas Constitutional provision

      15
          See U.S. Const. amend. VI.
      16
          Crawford v. Washington, 541 U.S. 36, 51–52, 124 S. Ct. 1354, 1364
(2004).
      17
          Id.
      18
        See United States v. Wade, 388 U.S. 218, 223, 87 S. Ct. 1926, 1930
(1967); Schmerber v. California, 384 U.S. 757, 764, 86 S. Ct. 1826, 1832 (1966).



                                          13
      on self-incrimination. The Court further held that compelling a blood test, if
      taken under conditions which comport with due process, likewise does not
      violate the state privilege against self-incrimination. This Court reasoned
      that such tests are non-testimonial in nature and thus the self-incrimination
      privilege is not implicated under such circumstances. The Court in Olson
      further noted that many types of physical evidence are compellable from
      an accused consistent with both the Fifth Amendment of the United States
      Constitution and Art. I, Sec. 10, of the Texas Constitution. A partial list of
      these types of physical evidence include fingerprints, examination of the
      tongue, fingernail scrapings, footprints, requiring the accused to stand in a
      lineup, requiring the accused to raise his hand before the jury, a paraffin
      test, [and] requiring the accused to put on clothes and speak before the
      jury. 19

      Fingerprints are not testimonial when they are given by a defendant, 20 nor

are they testimonial when they exist on a card and are presented before a jury. If

the fingerprint card is shown to be sufficiently reliable and adequately connected

to the person in question, the fingerprint card, absent testimonial notations, is still

nontestimonial. We therefore hold that the trial court did not abuse its discretion

by admitting testimony and exhibits regarding the known fingerprints provided by

Appellant in 1983, nor did the trial court abuse its discretion by admitting

testimony comparing Appellant’s known fingerprints to the latent fingerprints

collected at the crime scene. We overrule Appellant’s first and second points.




      19
       Bell v. State, 582 S.W.2d 800, 806–07 (Tex. Crim. App. 1979) (emphasis
added; citations omitted), cert. denied, 453 U.S. 913 (1981).
      20
        See Miffleton v. State, 777 S.W.2d 76, 79–80 (Tex. Crim. App. 1989).



                                          14
Conclusion

      Having overruled Appellant’s three points, we affirm the trial court’s

judgment.



                                              LEE ANN DAUPHINOT
                                              JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 5, 2013




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