     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      444444444444444
                                      NO. 03-00-00164-CR
                                      444444444444444


                                   John Slaughter, Appellant

                                                v.

                                  The State of Texas, Appellee



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   FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
         NO. 0983649, HONORABLE JON N. WISSER, JUDGE PRESIDING
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               Appellant John Slaughter appeals from his jury-trial conviction for aggravated

sexual assault. Tex. Penal Code Ann. § 22. 021 (West Supp. 2001). The trial court assessed

appellant’s punishment at imprisonment for life. Appellant asserts that the evidence is insufficient

to support his conviction, and that the trial court erred in admitting unlawfully obtained evidence

and in refusing to grant a mistrial. We affirm the judgment.

               The physically impaired victim was sexually assaulted in her dark bedroom.

Because of the darkness and her farsightedness, the victim was unable to positively identify

appellant as the man who committed the crime. She testified, however, that she believed the man

who attacked her was African-American based on his voice, the texture of his pubic hair, and a

view of his forearm. Appellant is African-American. No fingerprints were found to identify the
victim’s assailant. There was some difference in the size of appellant’s foot and a footprint found

on the victim’s bedroom floor. DNA evidence is the principal evidence identifying appellant as

the man who committed the assault.

               In his first and fourth points of error, appellant insists that the evidence is

insufficient to support his conviction and that the trial court erred in denying his motion for a

directed verdict. In reviewing the legal sufficiency of the evidence, “the relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979); accord Patrick v. State, 906 S.W.2d 481, 486

(Tex. Crim. App. 1995); Geesa v. State, 820 S. W. 2d 154, 167 (Tex. Crim. App. 1991);

Roberson v. State, 16 S.W.3d 156, 164 (Tex. App.—
                                                Austin 2000, pet. ref’d); King v. State, 17

S.W.3d 7, 13 (Tex. App.—
                       Houston [14th Dist.] 2000, pet. ref’d).

               Appellant first contends that because the State failed to prove a deadly weapon was

used the evidence is insufficient to support his conviction for aggravated sexual assault and that

the trial court erred in failing to grant his motion for an instructed verdict. It was alleged that

appellant used “a deadly weapon, to-wit: a knife, which in the manner of its use and intended use

was capable of causing death or serious bodily injury.” Anything that in the manner of its use or

intended use is capable of causing death or serious bodily injury is a deadly weapon. Tex. Penal

Code Ann. § 1. 07(a)(17)(B) (West 1994); Bailey v. State, No. 1179-87, slip op. at 3 (Tex. Crim.

App. Feb. 14, 2001); see McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). The

victim testified that she felt the edge of a metal object against the front of her throat and the back


                                                  2
of her neck. Although she did not see the object, she testified the object was straight edged,

sharp, and about six or seven inches in length. Based on the victim’s description of the object

held against her throat and the back of her neck, police officers James Dixon and Marcelino

Gonzales testified the object was capable of causing death or serious bodily injury. In a similar

case, the evidence was held sufficient to prove an object was a deadly weapon; although the victim

did not see the weapon, she testified that it felt like a knife or an ice pick, and officers testified

that the weapon the victim described was capable of causing death or serious bodily injury. Regan

v. State, 7 S.W.3d 813, 819-20 (Tex. App.—
                                         Houston [14th Dist. ] 1999, pet. ref’d). The evidence

in the instant case is sufficient to sustain the jury’s implicit finding that a deadly weapon was used

to commit the sexual assault.

               Next, appellant complains that the evidence is insufficient because there was “ a

break in the chain of custody of . . . the rape kit. ” Appellant argues that “the chain of custody

gets confusing” after the rape kit was “checked out” by Officer Gonzales. Gonzales delivered the

kit to the crime laboratory on October 28, 1997. Dr. Kathleen Corrado testified that on

November 14, 1997, she took the kit from the evidence vault in the crime laboratory to work on

the case. The kit admitted in evidence as State’s Exhibit 17 was identified by Dr. Corrado. There

is no evidence that the rape kit’s contents were tampered with or commingled with other evidence

and appellant makes no such claim. “Without evidence of tampering, most questions concerning

care and custody of a substance go to the weight attached, not the admissibility, of the evidence.”

Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997); accord Medellin v. State, 617

S.W.2d 229, 231 (Tex. Crim. App. 1981); Porter v. State, 969 S.W.2d 60, 67 (Tex. App.—
                                                                                     Austin


                                                  3
1998, pet. ref’d). “If the State proves the beginning and the end of the chain of custody, any gaps

in between usually go to the weight and not the admissibility of the evidence.” Davis v. State,

                              Austin 1992, pet. ref’d); accord Penley v. State, 2 S.W.3d 534,
831 S.W.2d 426, 443 (Tex. App.—

537 (Tex. App.—
              Texarkana 1999, pet. ref’d). When the State completes the chain of custody from

the initial collection of evidence to the laboratory, most questions concerning the care and custody,

including gaps and minor theoretical breaches, go to the weight of the evidence, not its

admissibility. Porter, 969 S.W.2d at 66; see also Avila v. State, 18 S.W. 3d 736, 739 (Tex.

    San Antonio 2000, no pet.); Moore v. State, 821 S.W.2d 429, 431 (Tex. App.—
App.—                                                                         Waco 1991,

no pet.).   The rape kit and its contents were properly admitted in evidence for the jury’s

consideration. Any rational trier of fact could have found that the elements of the offense

depending on the evidence furnished by the contents of the rape kit were established beyond a

reasonable doubt. There was no gap in the chain of custody of the rape kit that rendered the

evidence insufficient to support the jury’s verdict.

               Finally, appellant urges that the evidence is insufficient because: “ There was no

in-depth discussion of how the [DNA] tests work together or how the frequencies were determined

for the jury to make an informed decision as to guilt or innocence. ” DNA evidence alone may

be sufficient to identify an alleged defendant. Roberson, 16 S.W.3d at 164-72.

               The expert witness’s explanation of DNA testing and its use in identifying the

appellant in this case was quite similar to that described in the Roberson opinion. See id. at 161-

63. Michelle Lockhoof, a DNA analyst for the Texas Department of Public Safety Crime

Laboratory, the expert witness in the Roberson case, was also the expert witness who testified in


                                                 4
this case. In this case, Dr. Corrado and Lockhoof explained DNA testing methods. The expert

witnesses explained two types of tests to the jury. The polymerase chain reaction (PCR), a

screening test used in quickly testing small stains, and the restriction fragment length

polymorphism (RFLP), a test requiring more time and good quality DNA. Dr. Corrado testified

that the probability of another person having the same DNA profile as appellant was “one in 5.5

billion . . . what I can say is that I would expect to find this profile in approximately one out of

5.5 billion people . . . given the rarity of the [appellant’s] profile, I would think it’s extremely

unlikely that another person would have the same profile.” The State is not required to call a

mathematical expert to testify about the possible interpretations of statistical evidence. Griffith

v. State, 976 S.W.2d 241, 251 (Tex. App.—
                                        Amarillo 1998, no pet.). Appellant’s complaint

concerning the lack of “in-depth discussion of how [DNA] tests work” is without merit. Viewed

in the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the charged offense beyond a reasonable doubt. Appellant’s first and fourth

points of error are overruled.

               In his second point of error, appellant urges that the trial court erred in admitting

in evidence unlawfully seized samples of his blood, saliva, and hair. These samples were obtained

with a search warrant. Appellant asserts that the search warrant affidavit fails to show probable

cause for the search. Also, he asserts that the facts establishing probable cause were stale.

               Whether the facts alleged in a probable cause affidavit sufficiently support a search

warrant is determined by examining the totality of the circumstances. Illinois v. Gates, 462 U. S.

213, 230-31 (1983); Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim. App. 1996);


                                                 5
Hackleman v. State, 919 S.W.2d 440, 447 (Tex. App.—
                                                  Austin 1996, pet. ref’d untimely filed).

The probable cause determination is simply a practical common sense decision whether, given the

circumstances described in the affidavit, there is a fair probability that the item to be searched for

or seized will be found in a particular designated place. Hackleman, 919 S.W.2d at 447. “The

allegations are sufficient if they would ‘justify a conclusion that the object of the search is

probably on the premises.’” Ramos, 934 S.W.2d at 363 (quoting Cassias v. State, 719 S.W.2d

585, 587 (Tex. Crim. App. 1986)). “The magistrate is permitted to draw reasonable inferences

from the facts and circumstances alleged.” Id.; accord Gish v. State, 606 S.W.2d 883, 886 (Tex.

Crim. App. 1980). In determining whether an affidavit for a search warrant shows probable

cause, a reviewing court looks to the four corners of the affidavit. Massey v. State, 933 S.W.2d

141, 148 (Tex. Crim. App. 1996); Doescher v. State, 578 S.W.2d 385, 387 (Tex. Crim. App.

1978); Hackleman, 919 S.W.2d at 447; Carroll v. State, 911 S.W.2d 210, 216 (Tex. App.—
                                                                                     Austin

1995, no pet.). The information alleged in a search warrant affidavit need not “match in quality

or quantity the evidence necessary to obtain a conviction.” Janecka v. State, 739 S.W.2d 813,

823 (Tex. Crim. App. 1987).

               A search warrant may be issued to search for and seize property or items

constituting evidence of an offense or constituting evidence tending to show that a particular

person committed the offense. Tex. Code Crim. Proc. Ann. art. 18.02(10) (West Supp. 2001).

Blood is an item of evidence that may be seized when authorized by a search warrant. Gentry v.

State, 640 S.W.2d 899, 902 (Tex. Crim. App. 1982). A search warrant may not be issued

pursuant to subdivision (10) of article 18.02 of the Code of Criminal Procedure unless the sworn


                                                  6
affidavit sets forth sufficient facts to establish probable cause. Tex. Code Crim. Proc. Ann. art.

18.01(c) (West Supp. 2001). The facts necessary to establish probable cause pursuant to article

18.02(10) are as follows : (1) that a specific offense has been committed, (2) that the specifically

described property or items that are to be searched for or seized constitute evidence of that offense

or evidence that a particular person committed that offense, and (3) that the property or items

constituting evidence to be searched for or seized are located at or on the particular person, place,

or thing to be searched.      Id.; see also Hinsley v. State, 722 S.W.2d 476, 477-78 (Tex.

App.—
    Dallas 1986, no pet.)

               The affidavit supporting the search warrant in this case stated:


                            AFFIDAVIT FOR SEARCH WARRANT

       THE UNDERSIGNED AFFIANT, BEING A PEACE OFFICER UNDER THE
       LAWS OF TEXAS BEING DULY SWORN ON OATH MAKES THE
       FOLLOWING STATEMENTS AND ACCUSATIONS:

       (1) THERE IS IN TRAVIS COUNTY, TEXAS, SUSPECTED PERSON
           DESCRIBED AS FOLLOWS:

            SLAUGHTER JOHN ANTONIO B/M 10-23-1976

       (2) SLAUGHTER JOHN, HEREINAFTER REFERRED TO AS THE
           SUSPECT, IS CURRENTLY IN TRAVIS COUNTY JAIL, CHARGED
           WITH - EVADING ARREST, SUSPICIOUS PERSON, ATTEMPTED
           BURG, AND REQUEST TO APPREHEND (AGG. SEXUAL ASSAULT)
           SUSPECT WAS ARRESTED AFTER EVADING ARREST FROM 11712
           TALLOW FIELD, CITY OF AUSTIN, TRAVIS COUNTY, WHICH
           OCCURRED ON OR ABOUT THE 20TH DAY OF OCTOBER, 1997 A.D.

       (3) IT IS THE BELIEF OF THE AFFIANT THAT A SPECIFIC CRIMINAL
           OFFENSE HAS BEEN COMMITTED. AFFIANT HAS REASON TO
           BELIEVE THAT THE SUSPECT IS THE PERSON TO COMMIT THE
           SAID OFFENSE, TO-WIT: AGG. SEXUAL ASSAULT, IN THE COUNTY

                                                 7
   OF TRAVIS, CITY OF AUSTIN, TEXAS, AT 1805 MORNING QUAIL
   DR. ON OCT. 20TH 1997. AFFIANT BELIEVES THAT SUSPECT
   KNOWINGLY ENTERED THE VICTIM’S HOME THROUGH A
   BEDROOM WINDOW AND THREATENED VICTIM WITH A KNIFE.
   SUSPECT THEN ASSAULTED VICTIM BY PENETRATING HER ANUS
   WITH HIS PENIS.

(4) IT IS THE BELIEF OF THE AFFIANT THAT PHYSICAL EVIDENCE
    FOUND BY THE AUSTIN POLICE DURING THE INVESTIGATION OF
    THE ABOVE-DESCRIBED OFFENSE SHOULD BE COMPARE TO BODY
    SAMPLES COLLECTED FROM SUSPECT, TO WIT:

   A. SAMPLES OF BLOOD, SALIVA, HAIR (PUBIC, BODY, HEAD)

(5) AFFIANT’S BELIEF OF THE FOREGOING PARAGRAPHS LISTED
    ABOVE ARE BASED ON THE FOLLOWING FACTS AND
    CIRCUMSTANCES HEREIN REFERRED TO AS PROBABLE CAUSE AS
    SHOWN BY THE FOLLOWING WHICH IS INCORPORATED IN AUSTIN
    POLICE INCIDENT REPORT XX-XXXXXXX   . AFFIANT HAS READ
    AND RELIES ON THE INFORMATION IN THE POLICE REPORT TO
    OBTAIN THE PROBABLE CAUSE BELOW.

   A. THE AFFIANT IS A POLICE OFFICER ASSIGNED TO THE SEX
      CRIMES DETAIL OF THE AUSTIN POLICE DEPARTMENT AND
      IS RESPONSIBLE FOR THE INVESTIGATION OF SEXUAL
      ASSAULTS AND/OR EXPOSURE OFFENSES.

   B.   ON 05-02-1997, THE AFFIANT RECEIVED A.P.D. INCIDENT
        REPORT #XX-XXXXXXX, INITIATED BY OFFICE J. DIXON 2562, A
        COMMISSIONED PEACE OFFICER. THE REPORT STATES THAT
        THE VICTIM, CREDIBLE ADULT FEMALE AUSTIN RESIDENT,
        WENT TO ST. DAVIDS HOSPITAL FOR A RAPE EXAM.
        EVIDENCE FROM THE RAPE EXAM WAS COLLECTED AND
        TAKEN TO THE DEPARTMENT OF PUBLIC SAFETY
        LABORATORY FOR PROCESSING.

        A SWORN AFFIANT [SIC] WAS GIVEN BY THE VICTIM. THIS
        AFFIANT HAS READ ALL REPORTS AND STATEMENTS
        CONCERNING THE AGGRAVATED SEXUAL ASSAULT.

   C. VICTIM REPORTED THAT ON 05-02-1997, SHE WAS AWAKENED
      BY AN UNKNOWN SUSPECT ON TOP OF HER WITH HIS HAND

                               8
   OVER HER MOUTH, AND A KNIFE IN THE OTHER HAND.
   VICTIM SAID THAT SHE FEARED FOR HER LIFE. SUSPECT
   THEN FORCED HIS PENIS INTO THE VICTIMS MOUTH, MAKING
   HER PERFORM ORAL SEX. SUSPECT THEN TURNED THE
   VICTIM ON HER STOMACH AND INSERTED HIS PENIS INTO
   HER ANUS.

   SUSPECT ENTERED THE BEDROOM WINDOW OF THE VICTIM
   AND ALSO EXITED THE SAME WINDOW. SUSPECT COVERED
   THE VICTIMS FACE WITH HIS HAND AND DISPLAYED A
   KNIFE.

   SUSPECT WAS DESCRIBED AS A BLACK MALE IN HIS LATE
   20' S EARLY 30' S LAST SEEN WEARING DARK CLOTHING AND
   HAVING BALD OR SHAVED HEAD. SUSPECT TALKED IN A
   CLEAR LOW VOICE. SUSPECT HAD MUSCULAR ARMS AND A
   FLOWER SENT COLOGNE. SUSPECT DESCRIBED AS MEDIUM
   BUILD ABOUT 6' 00 FT. TALL.

D. I RECEIVED INFORMATION ON OFFENSE REPORT #XX-XXXXXXX,
   THAT OCCURRED ON 10-20-97, SUSPICIOUS PERSON,
   ATTEMPTED BURGLARY OF RESIDENT, AND REQUEST TO
   APPREHEND (AGG. SEXUAL ASSAULT).

   THE SUSPECT IN THIS CASE IS SLAUGHTER JOHN B/M 10-23-76.
   SUSPECT WAS IN THE BACK YARD OF 11712 TALLOW FIELD.
   OFFICERS ON THE SCENE WERE AWARE OF A RECENT
   BURGLARY AT 11718 TALLOW FIELD.              OFFICERS
   APPROACHED AND IDENTIFIED THEMSELVES AND THE
   SUSPECT JOHN SLAUGHTER RAN FROM OFFICERS. OFFICERS
   CHASED SUSPECT INTO THE APARTMENT AT 11701 METRIC
   BLVD. #711. SUSPECT DOES NOT LIVE IN THE APARTMENT
   NOR DOES HE GIVE AN AUSTIN ADDRESS. SUSPECT GAVE
   THE OFFICERS A FALSE NAME, UPON FURTHER
   INVESTIGATION SUSPECT WAS FOUND TO HAVE FIVE
   OUTSTANDING WARRANTS FROM BIG SPRINGS, TEXAS.

   ONE OF THOSE WARRANTS IS NUMBER 96RS723 FOR
   AGGRAVATED SEXUAL ASSAULT, THE BOND IS SET AT
   30,000.00.



                          9
                 I TALKED WITH MR. SLAUGHTER WHO STATED THAT HE HAS
                 BEEN IN AUSTIN FOR NINE MONTHS. MR. SLAUGHTER DOES
                 NOT HAVE A LOCAL AUSTIN ADDRESS. TWO RAPES HAVE
                 OCCURRED IN THE GRACYWOODS SUBDIVISION WHICH IS IN
                 THE IMMEDIATE AREA WHERE SUSPECT WAS FOUND IN THE
                 BACK YARD. SUSPECT ALSO MATCHES THE PHYSICAL
                 DESCRIPTION GIVEN BY THE VICTIM. SUSPECT WAS ASKED
                 FOR CONSENT FOR HIS BLOOD AND HAIR FOR COMPARISON
                 AND REFUSED.


               This affidavit alleges in detail that the specific offense of aggravated sexual assault

had been committed. It specifically describes the items to be seized as samples of blood, saliva,

and hair of appellant. The affidavit also states affiant’s belief that the samples of blood, saliva,

and hair to be seized from appellant would be evidence tending to show that appellant was the

particular person who committed the offense.

               In applying the principles of Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App.

1997), regardless of whether we review the sufficiency of the warrant affidavit de novo; see Wynn

v. State, 996 S.W.2d 324, 326-27 (Tex. App.—
                                           Fort Worth 1999, no pet.); Lane v. State, 971

                          Dallas 1998, pet. ref’d); Wachter v. State, 961 S.W.2d 598, 600
S.W.2d 748, 752 (Tex. App.—

(Tex. App.—
          San Antonio 1997, pet. ref’d); or we apply the abuse of discretion standard of review,

see State v. Bradley, 966 S.W.2d 871, 873-74 (Tex. App.—
                                                       Austin 1998, no pet.); Daniels v. State,

                            Houston [14th Dist.] 1999, no pet.); Barton v. State, 962 S.W.2d
999 S.W.2d 52, 54 (Tex. App.—

132, 134-38 (Tex. App. —
                       Beaumont 1997, pet. ref’d), we conclude that the magistrate properly

issued the search warrant, and that the trial court did not err in admitting in evidence the

appellant’s blood sample.



                                                 10
               As the State suggests, the concept of “staleness” urged by appellant, is not

applicable to an affidavit supporting a search warrant authorizing a search for and seizure of

blood, saliva, and hair. The staleness rule is concerned with whether items to be searched for will

probably be in a designated place at the time of the proposed search. For probable cause to arrest,

it is simply necessary that there exist a probability that a crime has been committed and that the

person to be arrested committed it. Probable cause to search, on the other hand, ordinarily may

be said to exist only if it is established that certain identifiable objects are probably connected with

certain criminal activity and are probably to be found at the present time in a certain identifiable

place. Search cases then, in contrast to arrest cases, present the unique problem of whether the

probable cause which once existed has grown stale. 1

                Staleness depends upon the circumstances of each case. Usually, search warrants

are concerned with the location of moveable objects such as stolen property or drugs. The

observation of a half-smoked marijuana cigarette in an ashtray at a cocktail party may be stale the

next day after the room has been cleaned; the observation of the burial of a corpse in a cellar may

well not be stale three decades later. Andresen v. State, 331 A.2d 78, 106 (Md. Ct. Spec. App.

1975), aff’d sub nom, Andresen v. Maryland, 427 U. S. 463 (1976). Blood, saliva, and hair will

always be found on or in the body of a suspect. Appellant’s staleness argument is without merit.

Appellant’s second point of error is overruled.




       1
         For a more extensive discussion of staleness, see Wayne R. LaFave, Search and Seizure
§ 3.7 (3d ed. 1996).

                                                  11
               In his third point of error, appellant complains of the trial court’s alleged abuse of

discretion in refusing to grant a mistrial. On direct-examination of Officer Marcelino Gonzales,

the prosecutor asked him about a conversation he had with appellant before appellant was arrested:


       Q. (By Prosecutor) Without going into what was said, you went and met with
          him, but you were unable to get a blood sample at that time?

       A. Correct, at that time it was -- yeah, he didn’t consent to that.

            DEFENSE COUNSEL: Judge, I’m going to object to -- I’m going to object
            to any statements about conversations between my client and this officer.

            THE COURT: We’ll sustain the objection.

            DEFENSE COUNSEL: I’m going to ask the jury to disregard the question
            and the answer.

            THE COURT: Okay. The jurors will disregard the last question and answer.

            DEFENSE COUNSEL: And I move for a mistrial.

            THE COURT: That request is denied.


Appellant argues that a mistrial should have been granted because the response given by Officer

Gonzales indicating that appellant did not consent to giving a blood sample caused harm incurable

by an instruction to disregard.

               Appellant’s objection was not sufficiently specific and it was untimely made after

the question was asked and answered. The non-specific, untimely objection failed to preserve the

error claimed on appeal. See Lagrone, 942 S.W.2d at 618; Dinkins v. State, 894 S.W.2d 330,

355 (Tex. Crim. App. 1995); Russell v. State, 904 S.W.2d 191, 196-97 (Tex. App.—
                                                                               Amarillo

1995, pet. ref’d); Juhasz v. State, 827 S.W.2d 397, 401 (Tex. App.—
                                                                  Corpus Christi 1992, pet.

                                                12
ref’d). Furthermore, the trial court’s prompt admonition for the jury to disregard the question and

answer adequately preserved appellant’s rights. Ordinarily, a prompt instruction to disregard will

cure error associated with an improper question and answer. Ovalle v. State, 13 S.W.3d 774, 783

(Tex. Crim. App. 2000). The asking of an improper question will seldom call for a mistrial,

because, in most cases, any harm can be cured by an instruction to disregard. Ladd v. State, 3

S.W.3d 547, 567 (Tex. Crim. App. 1999); Hernandez v. State, 805 S.W.2d 409, 413-14 (Tex.

Crim. App. 1990); Webster v. State, 26 S.W.3d 717, 723 (Tex. App.—
                                                                 Waco 2000, no pet.). In

the context of this case, the trial court’s admonition for the jury to disregard the question and

answer was sufficient. The trial court did not abuse its discretion in refusing to grant a mistrial.

We overrule appellant’s third point of error.

               The judgment is affirmed.




                                              Carl E. F. Dally, Justice

Before Justices Yeakel, Patterson and Dally*

Affirmed

Filed: February 28, 2001

Do Not Publish




                                                13
*
    Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment.
    See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).




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