                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00027-CR

DAVID SHARP,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 40th District Court
                               Ellis County, Texas
                             Trial Court No. 34831CR


                          MEMORANDUM OPINION


      The jury convicted David Sharp of aggravated sexual assault of a child and

assessed his punishment at 99 years confinement. We affirm.

                                   Background Facts

      Eleven-year-old S.M. was staying the night at her cousin’s home after babysitting

her cousin’s infant son. Sharp arrived at the home in the early morning hours, and was

also staying the night. S.M. testified that she was asleep on the couch and that she woke

up when she felt someone touching her “private.” S.M. stated Sharp was the person
touching her, and that she got up and moved to another couch. Sharp followed her,

and he gave her money and told her not to tell anyone. S.M. testified that Sharp then

pulled down her pants and put his “stuff” inside of her private. 1 S.M. reported the

incident to family members who called the police. S.M. was taken to the hospital where

an examination was performed.

           The examination included taking samples for a sexual activity kit.         The kit

included vaginal and anal swabs and smears, oral swabs and smears, and also S.M.’s

clothing. The vaginal and anal swabs tested positive for the presence of seminal fluid.

S.M.’s underwear also tested positive for the presence of seminal fluid. The DNA

profile from the evidence matched the DNA profile of Sharp.

           Sharp went to the police station and gave a statement voluntarily on the day of

the incident. In the statement, Sharp said that he was asleep on the couch and S.M.

climbed on top of him and straddled him. Sharp also gave a buccal swab for DNA

testing. Sharp gave another statement a few days later. He said that he was asleep on

the couch and he felt something wet. When he woke up, S.M. was on top of him on his

lap facing backwards. Sharp pushed S.M. off of him and told her he would tell her

mother. S.M. responded “so.” Sharp went back to sleep and was later woken up by

someone hitting him and asking “who had touched this child.” Sharp woke up his

friend, and they left the home.

           Sharp testified at trial and repeatedly stated that he did not have the “intent” to

commit the offense. Sharp testified that S.M. sexually assaulted him. Sharp’s testimony

1   S.M. identified “stuff” as the male genitalia and sex organ.

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at trial was consistent with his statement that he woke up and S.M. was on top of him.

Sharp said that he did not wake up anyone and tell them what had happened because

he did not want them to misunderstand. Sharp testified that he has prior arrests,

including “four or five resisting and evading arrest.” He stated that “any time I’m

guilty of something… I run.”

        Sharp did not deny having contact with S.M. His defense was that she initiated

the contact, and that he had no “intent” to commit the offense. On the day of trial, the

State informed the trial court that it had just received lab reports on the biological

evidence taken from S.M. and Sharp. Sharp’s attorney did not seek a continuance

stating that the document “does not affect our defense in anyway. It’s expected.”

                                 Admission of Evidence

        In four issues on appeal, Sharp argues that the trial court erred in admitting

evidence. In the first issue, Sharp complains that the trial court erred in admitting

State’s Exhibit 1, twenty-two dollars in cash. In the second issue, Sharp argues that the

trial court erred in admitting testimony on the results of DNA testing. In the third

issue, Sharp contends that the trial court erred in admitting State’s Exhibits 4, 5, and 6,

the buccal swab samples from Sharp. In the fourth issue, he complains that the trial

court erred in admitting State’s Exhibits 8 through 16, the contents and report from the

sexual assault kit containing samples from S.M. Sharp argues in each issue that there

was no proper foundation and that the chain of custody was not established.

        We review a trial court's decision to admit evidence under an abuse of discretion

standard. Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010); Walters v. State, 247

Sharp v. State                                                                       Page 3
S.W.3d 204, 217 (Tex. Crim. App. 2007). The trial court abuses its discretion only when

the decision lies "outside the zone of reasonable disagreement." Davis v. State, 329

S.W.3d at 803.

        The requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a finding that the matter in

question is what the proponent claims. TEX. R. EVID. 901 (a). 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). The State need only prove the beginning and end of the chain

of custody; it need not show a moment-by-moment account of the whereabouts of

evidence from the instant it is seized. Shaw v. State, 329 S.W.3d 645, 654 (Tex.App.—

Houston [14th Dist.] 2010, pet. den’d).

State’s Exhibit 1

        S.M. testified that Sharp gave her money and told her not to tell anyone. S.M.

stated that she gave the money to her aunt, Keidra Perkins. At trial, Keidra identified

State’s Exhibit 1 and stated that S.M. gave her the money. Officer Chad Bolton testified

that he received State’s Exhibit 1, $22 in cash, from Keidra. Officer Bolton sealed the

money in an envelope with tape and labeled the envelope with identifying information.

Officer Bolton placed the evidence in the evidence locker. It remained in the evidence

locker until the time of trial. Officer Bolton identified State’s Exhibit 1 at trial. Tagging

an item of physical evidence at the time of its seizure and then identifying it at trial

based upon the tag is sufficient for admission barring any showing by the defendant of

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tampering or alteration. Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989). There

is no evidence of tampering with State’s Exhibit 1. The trial court did not err in

admitting the evidence. We overrule the first issue.

DNA Testimony and State’s Exhibits 8-16

        Dr. Matthew Cox testified that he examined S.M. and collected specimens and

samples from her. Dr. Cox submitted each sample and specimen in a standardized kit.

Dr Cox placed the evidence in a box, sealed the box, and labeled it with identifying

information. The evidence was placed in a lock box at Parkland Hospital. The contents

of the kit were marked as State’s Exhibits 8-16, and State’s Exhibit 18. Dr. Cox identified

these exhibits at trial.

        Amanda Lehrmann, a forensic biologist at Southwestern Institute of Forensic

Sciences, testified that the key to the lock box at Parkland Hospital is kept in the

laboratory and accessed only by biology personnel or direct supervisors. She testified

that evidence is removed from the lock box three times a week and taken to the

laboratory. Lehrmann testified that when she received the kit, it was intact and sealed.

Lehrmann said that SWIF labeled each piece of evidence and sealed the evidence after

testing.    Lehrmann supervised Daniel Tang, who was in training, in testing the

evidence.        Both Lehrmann and Tang signed the report detailing the evidence and

results of the testing. After all testing is complete, the evidence is sealed and returned to

the investigating agency. Lehrmann identified the sexual assault kit and the samples

contained in the kit at trial and testified that the evidence had not been tampered with

in any way.

Sharp v. State                                                                         Page 5
        Courtney Ferreira, a biologist and DNA analyst at SWIF, testified that her

department receives the DNA samples to be tested from the serology department of

SWIF. The samples are labeled with identifying information for the particular case.

Ferreira testified that Ismael Parra, who was in training, performed the DNA analysis

on the samples. Ferriera checked his work and approved his findings. Both Ferreira

and Parra signed the report containing the results of the DNA analysis. Lehrmann,

Tang, Ferriera, and Parra all testified at trial concerning the evidence in question.

        There is no evidence of tampering with State’s Exhibits 8 through 16 and 18. The

evidence was properly identified at trial, and the State showed the beginning and the

end of the chain of custody. The trial court did not err in admitting the evidence. We

overrule issues two and four.

State’s Exhibits 4, 5, and 6

        State’s Exhibit 4 is a buccal swab from Sharp’s left cheek, State’s Exhibit 5 is a

sample from his right cheek, and State’s Exhibit 6 is an envelope in which the samples

were placed. Sergeant Rodney Rickman collected the samples, packaged each sample

separately in an envelope, and labeled and sealed both samples.            Detective Mark

Mahoney took the two envelopes and placed them in a larger envelope, State’s Exhibit

6.   Detective Mahoney sealed and labeled State’s Exhibit 6 and turned it over to

Lieutenant Ron Roark for delivery to SWIF.

        Lehrmann testified that the exhibits were received at SWIF and labeled with

identifying information. The DNA samples were heat sealed and placed in the freezer

for DNA testing.

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        Officer Rickman identified the exhibits at trial, and stated that they had not been

tampered with in any way. The trial court did not err in admitting State’s Exhibits 4, 5,

and 6. We overrule the third issue.

                                        Conclusion

        We affirm the trial court’s judgment.




                                          AL SCOGGINS
                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 31, 2011
Do not publish
[CRPM]




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