                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-06-416-CR


SAMUEL WILLIAMS                                                       APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE

                                     ------------

          FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

                                     ------------

                                     OPINION

                                     ------------

                                I. INTRODUCTION

         Appellant Samuel Williams appeals his conviction for sexual assault of a

child.    In eleven points, appellant argues that the evidence is legally and

factually insufficient to support the conviction, the trial court erred in admitting

his written confession because it was involuntary and not recorded by the

investigating officer, the interview was not terminated upon his request, and

the trial court erred in admitting six vaginal swabs into evidence. We affirm.
                         II. FACTUAL BACKGROUND

      Appellant began to rebuild his relationship with his daughter D.W. when

she was twelve years old after having no contact with her since she was two

years old. On July 25, 2005, when D.W. was fifteen years old, appellant called

and told her that he was coming to visit her. When appellant arrived at the

apartment of D.W.’s mother, D.W. let him in and went to her room. Appellant

followed and sat next to her on the bed.       D.W. testified that she became

uncomfortable when appellant asked her if she could take him away from his

girlfriend. He then told D.W. to lie on the floor as he instructed and showed her

a condom. When D.W. complied, appellant proceeded to remove D.W’s shorts

and panties and then removed his own clothes before engaging in sexual

intercourse with her.

      Shortly after, D.W.’s mother, Barbara M., returned home, and appellant,

startled upon hearing the key in the door, quickly hid in the closet where

Barbara found him half-naked. She called the police. After they arrived, she

took D.W. to John Peter Smith Hospital (JPS) where sexual assault nurse

examiner Barbara Hynson performed a rape examination of D.W. Hynson found

numerous injuries consistent with blunt force trauma that can be caused by

sexual intercourse.




                                       2
      On August 24, 2005, police arrested appellant, and the investigating

officer, Sergeant Steve Benjamin, read appellant his Miranda rights in an

interview room. After a short, unrecorded interview, appellant decided to give

his version of the incident with D.W. in a written statement. Sergeant Benjamin

left the room and allowed appellant to write out his statement.            In his

statement, appellant said that D.W. seduced him into having sexual intercourse

and that he “got caught up in the moment.”

      The State charged appellant with sexual assault of a child. After a trial

on November 14 through 17, 2006, a jury found him guilty. Appellant pled

“true” to the habitual offender notification, and the jury assessed his

punishment at eighty years’ confinement.

                   III. LEGAL AND FACTUAL SUFFICIENCY

      In appellant’s tenth and eleventh points, he argues that the evidence

offered at trial was legally and factually insufficient to support the verdict.

A. Legal Sufficiency Standard of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order

to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443




                                        3
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

      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. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the

sole judge of the weight and credibility of the evidence. See T EX. C ODE C RIM.

P ROC. A NN. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919

(Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute

our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735,

740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we

“determine 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.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.

Crim. App. 2007).      We must presume that the fact-finder resolved any

conflicting inferences in favor of the prosecution and defer to that resolution.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.




B. Factual Sufficiency Standard of Review

                                       4
      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the fact-finder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,

we must determine, with some objective basis in the record, that the great

weight and preponderance of all the evidence, though legally sufficient,

contradicts the verdict. Watson, 204 S.W.3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence. Id. W e may not simply substitute our judgment for the fact-

                                        5
finder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407

(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result

is appropriate, we must defer to the jury’s determination of the weight to be

given contradictory testimonial evidence because resolution of the conflict

“often turns on an evaluation of credibility and demeanor, and those jurors were

in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.

Thus, we must give due deference to the fact-finder’s determinations,

“particularly those determinations concerning the weight and credibility of the

evidence.” Id. at 9.

      An opinion addressing factual sufficiency must include a discussion of the

most important and relevant evidence that supports the appellant’s complaint

on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

C. Analysis

      Appellant claims that the evidence the State provided failed to show that

he actually caused the penetration of D.W.’s female sexual organ. Specifically,

he contends that a reasonable jury could not have come to this conclusion

because the testimony of D.W. was ambiguous, lacked credibility, and was

subject to outside influence.

      To convict appellant of sexual assault of a child, the State was required

to prove that appellant intentionally or knowingly caused the penetration of

                                       6
D.W.’s female sexual organ.       See T EX. P ENAL C ODE A NN. § 22.011(a)(2)(A)

(Vernon Supp. 2007). The testimony of a sexual assault victim alone is

sufficient to support a conviction for sexual assault of a child. T EX. C ODE C RIM.

P ROC. A NN. art. 38.07 (Vernon 2005); see Garcia v. State, 563 S.W.2d 925,

928 (Tex. Crim. App. 1978); Connell v. State, 233 S.W.3d 460, 466 (Tex.

App.—Fort Worth 2007, no pet.). Courts give wide latitude to the testimony

given by a child victim of sexual abuse. See Villalon v. State, 791 S.W.2d 130,

134 (Tex. Crim. App. 1990).       In addition, there is no requirement that the

victim’s testimony be corroborated by medical or physical evidence. Garcia,

563 S.W.2d at 928; Kemple v. State, 725 S.W.2d 483, 485 (Tex.

App.—Corpus Christi 1987, no pet.).

      During trial, D.W. testified that in July 2005, when she was fifteen years

old, appellant came to visit her when she was home alone. When appellant

arrived, D.W. let him in and returned to her room where she was watching T.V.

and listening to the radio. D.W. testified that appellant followed her into the

room and sat next to her on her bed.         D.W. became uncomfortable after

appellant asked her if she could take him away from his girlfriend. Following

this question, appellant asked D.W. to lie down on the floor. He then showed

D.W. a condom and described what it was. D.W. testified that appellant then

removed her shorts and panties, took off his clothes, and initiated sexual

                                         7
intercourse with her. D.W. stated that she felt pain during the incident and that

appellant told her that it would not hurt until after he was finished. When

appellant heard D.W.’s mother arrive home, he stopped sexual intercourse with

D.W. and quickly hid in the bedroom closet.

      In addition to D.W.’s testimony of the incident, the jury heard

corroborating testimony from her mother, Barbara M., and sexual assault nurse

examiner, Hynson. Barbara’s testimony supports D.W.’s claim that she arrived

home while the incident was taking place. Barbara testified that when she

arrived home, she heard D.W.’s closet door close, and she saw D.W. sitting on

her bed scared and crying.       When Barbara opened the closet door, she

discovered a man on all fours in the fetal position with no shirt on and his

shorts down past his knees. Barbara recognized appellant when he raised his

head. After a confrontation between Barbara and appellant, Barbara called the

police and then took her daughter to JPS.        Two days after the incident,

appellant called Barbara from jail. Barbara asked him why he had sex with their

daughter, and he replied that D.W. had wanted to do it.         During the call,

appellant claimed that he wanted to kill himself because of what had happened.

Barbara did not tell the police about the phone call.

      At JPS, sexual assault nurse examiner Barbara Hynson examined D.W .

Hynson testified that D.W. told her that appellant had sex with her, and upon

                                       8
completion of the examination, Hynson found three injuries in D.W.’s genital

area. The report that Hynson filed for the examination was consistent with her

testimony that D.W. had a blood blister on her clitoris and two hymenal tears.

She further testified that all three injuries were consistent with injuries caused

by the blunt force trauma from sexual intercourse.

      As a result of the exam, Hynson sent six vaginal swabs from D.W. to

Orchid Cellmark Laboratory.     Technician Cassie Johnson testified that she

performed a Y-STR DNA test on the swabs to verify the presence of male DNA.

The test specifically targets markers on the Y chromosome, which is carried and

inherited only by males in the same lineage. The test identifies markers from

the Y chromosome in sperm cells and epithelial cells. Epithelial cells may be

found in saliva, blood, skin, or other cells present in the ejaculate that are not

sperm cells. When the results from the vaginal swabs were compared with the

DNA sample from appellant, Johnson found no sperm cells; however, one

sample, swab 1.04, contained a partial profile of an epithelial cell. The partial

profile from swab 1.04 indicated that eleven of the seventeen traced markers

matched the sample taken from appellant.          From these results, Johnson

concluded that appellant and any male within his lineage could not be excluded

as a possible source of the DNA found on D.W.’s vaginal swab.




                                        9
      The State also offered the statement given by appellant after his arrest.

According to the testimony of the investigating officer, Sergeant Benjamin,

appellant wrote and signed a statement on August 4, 2005. In his statement,

appellant claimed that he rode his bike over to D.W.’s house on July 25, 2005.

When he arrived, D.W. invited him into her bedroom where she then took off

her clothes and seduced him. He wrote that D.W. pulled him down on top of

her and guided his penis into her vagina. It was at this point that he realized

what was going on, interrupted sexual intercourse with D.W., and told her that

this was not right. Appellant wrote that he was about to leave when he heard

Barbara arrive home. Because he knew that he would be blamed, he hid in the

closet.

      In reviewing all of the evidence, the testimony of D.W. alone was

sufficient to support appellant’s conviction. See T EX. C ODE . C RIM. P ROC. A NN.

art. 38.07; Garcia, 563 S.W.2d at 928 (finding that the victim’s testimony,

standing alone, was sufficient evidence that the victim’s female organ was

penetrated). Although D.W.’s testimony did not have to be corroborated by

additional medical or physical evidence, the testimony of Barbara and Hynson

supported D.W.’s account of the incident. See Garcia, 563 S.W.2d at 928;

Kemple, 725 S.W.2d at 485. Barbara’s testimony corroborated the facts that

appellant was at the apartment at the time of the incident and was found hiding

                                        10
in the closet when Barbara came home. Additionally, Barbara testified that two

days after the incident, appellant admitted that he had had sex with D.W.

Hynson’s testimony indicated that D.W. had sustained injuries to her genital

area that were consistent with injuries likely to occur from sexual intercourse.

The vaginal swabs taken by Hynson and analyzed by Johnson provided

evidence that male DNA was partially matched to appellant’s epithelial cell

profile and therefore prevented him from being excluded as a possible

contributor of the DNA. Finally, appellant admitted in his written statement

that penetration occurred.

      Therefore, viewing all of the evidence in a light most favorable to the

verdict, we hold that a rational trier of fact could have found beyond a

reasonable doubt that appellant did intentionally or knowingly penetrate the

female sexual organ of D.W. See T EX. P ENAL C ODE A NN. § 22.011(a)(2)(A);

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.         When viewing all of the

evidence in a neutral light, we hold that the evidence supporting the conviction

is not so weak that a reasonable juror’s determination is clearly wrong and that

any conflicting evidence does not greatly outweigh the evidence in support of

the conviction so that a juror’s determination is unequivocally unjust.     See

Watson, 204 S.W.3d at 414-15, 417; Drichas, 175 S.W.3d at 799; Johnson,

23 S.W.3d at 11. We overrule appellant’s tenth and eleventh points.

                                      11
                          IV. Validity of the Confession

      In his first five points, appellant argues that the trial court erred in denying

his motion to suppress his written statement and that his rights under the U.S.

Constitution, Texas Constitution, and the Texas Code of Criminal Procedure

were violated because his confession in the written statement was involuntary.

In his sixth and seventh points, appellant argues that his rights under the U.S.

and Texas Constitutions were violated because the interview was not stopped

at his request. In appellant’s eighth point, he contends that the interview was

not recorded as required by the Texas Code of Criminal Procedure.

A. The Motion to Suppress was Properly Denied

      1. Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under

a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). In reviewing the trial court’s decision, we do not engage in our own

factual review.   Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no

pet.). The trial judge is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony. Wiede v. State, 214

S.W.3d 17, 24-25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855

                                         12
(Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195

S.W.3d 696 (Tex. Crim. App. 2006).            Therefore, we give almost total

deference to the trial court’s rulings on (1) questions of historical fact, even if

the trial court’s determination of those facts was not based on an evaluation of

credibility and demeanor and (2) application-of-law-to-fact questions that turn

on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;

Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006); Johnson

v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002).                 But when

application-of-law-to-fact questions do not turn on the credibility and demeanor

of the witnesses, we review the trial court’s rulings on those questions de

novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607

(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652-53.

      Stated another way, when reviewing the trial court’s ruling on a motion

to suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we

determine whether the evidence, when viewed in the light most favorable to the

trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818-19.

We then review the trial court’s legal ruling de novo unless its explicit fact




                                        13
findings that are supported by the record are also dispositive of the legal ruling.

Id. at 819.

      We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court

gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740

(Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex

Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).

      2. Applicable Law

      The statement of the accused may be used in evidence if it was freely

and voluntarily made without compulsion or persuasion. T EX. C ODE . C RIM. P ROC.

A NN. art. 38.21 (Vernon 2005).        In deciding whether a statement was

voluntary, we consider the totality of the circumstances in which the statement

was obtained.    Creager v. State, 952 S.W .2d 852, 855 (Tex. Crim. App.

1997); Reed v. State, 59 S.W.3d 278, 281 (Tex. App.—Fort Worth 2001, pet.

ref’d). A confession is involuntary if circumstances show that the defendant’s

will was “overborne” by police coercion. Creager, 952 S.W.2d at 856. The

defendant’s will may be “overborne” if the record shows that there was

“official, coercive conduct of such a nature” that a statement from the

defendant was “unlikely to have been the product of an essentially free and

unconstrained choice by its maker.” Alvarado v. State, 912 S.W.2d 199, 211

                                        14
(Tex. Crim. App. 1995); Frank v. State, 183 S.W.3d 63, 75 (Tex. App.—Fort

Worth 2005, pet. ref’d).

      3. Analysis

      Appellant contends that his confession was involuntarily given because

he was under duress, and Sergeant Benjamin coerced him by making improper

promises.   According to the record, on August 24, 2005, police arrested

appellant on an outstanding warrant and transported him to the Crimes Against

Children Unit for questioning about the alleged sexual assault. Appellant was

then taken to an interview room at 12:55 p.m. where Sergeant Benjamin sat

beside him and read him the Miranda warnings as appellant followed along.

Sergeant Benjamin testified that appellant said that he understood his rights and

was willing to waive those rights and make a statement.          Appellant then

initialed the top and bottom of the statement form that contained the Miranda

warnings, indicating that he understood and was waiving his rights.

      Sergeant Benjamin began the interview by informing appellant of the

sexual assault charges against him, and appellant indicated that he would like

to tell his side of the story. Sergeant Benjamin asked appellant if he needed to

use the restroom or if he wanted a drink, and appellant was given some water

upon his request. Never, at any point in the interview, did appellant ask for an

attorney. Sergeant Benjamin then asked appellant to write out his version of

                                       15
what had happened and left him alone to write his statement. Appellant filled

in the blanks of the statement form, including that he had completed eleven

years of schooling, and wrote his statement.        When Sergeant Benjamin

returned, he asked appellant if he would like to add anything else about how he

felt, and appellant proceeded to write out the final paragraph of the statement.

Lastly, appellant signed the statement and noted the interview’s end time of

2:00 p.m. at the bottom of the statement. Furthermore, Sergeant Benjamin

testified that he never coerced appellant in any way, and he conducted the

interview without raising his voice or using physical intimidation. Sergeant

Benjamin also testified that appellant was calm and cooperative throughout the

interview.

      Based on the evidence provided at the suppression hearing, the totality

of the circumstances show that appellant knowingly and voluntarily gave his

statement after waiving his Miranda rights. The record does not show that

appellant was under duress or that Sergeant Benjamin coerced appellant by

using improper promises or undue physical or mental influence. In addition, the

interview was relatively short, lasting approximately an hour, and was not taken

in abnormally adverse conditions. The only request that appellant had was

granted to him, and at no point in the interview did appellant request the

presence of an attorney. Thus, the evidence supports the trial court’s ruling,

                                      16
and we hold that the trial court did not abuse its discretion by denying

appellant’s motion to suppress. See Creager, 952 S.W.2d at 855. We overrule

appellant’s points one through five.

B. Request to Terminate the Interview

        In his sixth and seventh points, appellant argues that his rights under the

Fifth and Fourteenth Amendments of the U.S. Constitution and Article 1,

Section 10 of the Texas Constitution were violated because Sergeant Benjamin

did not terminate the interview after appellant requested that the interrogation

stop.

        In accordance with a defendant’s right to remain silent under Miranda, the

defendant may invoke his right against self-incrimination at any time during a

custodial interrogation by requesting that the interview be terminated. Michigan

v. Mosley, 423 U.S. 96, 100-01, 96 S. Ct. 321, 325 (1975); Dowthitt v.

State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996); Franks v. State, 90

S.W.3d 771, 786 (Tex. App.—Fort Worth 2002, no pet.). Failure to cut off

questioning after a defendant unambiguously invokes his right to remain silent

violates his rights and makes any subsequently obtained statements

inadmissable because they are involuntary. Dowthitt, 931 S.W.2d at 257.

        Here, Sergeant Benjamin began the interview by reading appellant his

Miranda rights, and appellant indicated that he understood his rights and wished

                                         17
to waive them.     The record does not show that appellant ever specifically

requested that the interview be terminated. However, appellant argues that

Sergeant Benjamin’s testimony regarding his initial conversation with appellant

indicates that appellant did ask to terminate the interview.           Specifically,

appellant points to Sergeant Benjamin’s testimony that, “[v]erbally, I believe he

[appellant] started off saying he wouldn’t do that, and we just proceeded to talk

a little while.” [emphasis added.]

      Appellant argues that the statement, “he wouldn’t do that,” indicates that

he did not want to participate in the interview; however, this statement, if

viewed as an attempt to invoke appellant’s Fifth Amendment right against self-

incrimination, is not sufficiently unambiguous so as to indicate a clear and

unambiguous invocation to terminate the interview. See Dowthitt, 931 S.W.2d

at 257 (holding that the appellant’s statement, “I can’t say more than that. I

need to rest,” was found not to be an unambiguous invocation of his right to

remain silent). Within the context of the parties’ conversation, it is just as likely

that appellant’s statement was a response to the charges against him as a

request to invoke the rights that he had just waived. Furthermore, Sergeant

Benjamin testified that after saying “he wouldn’t do that,” appellant still gave

a written statement and remained cooperative and relaxed throughout the

interview.   Because we hold that there is no evidence in the record of an

                                         18
unambiguous request to terminate the interview, we overrule appellant’s sixth

and seventh points.

C. Failure to Record the Oral Interview

      In his eighth point, appellant argues that his rights under the Texas Code

of Criminal Procedure were violated because the confession was not recorded.

Appellant argues that his written statement was taken in violation of Article

38.22, section 3(a)(1) of the Texas Code of Criminal Procedure because his

interview with Sergeant Benjamin prior to the written confession was not

recorded. T EX. C ODE C RIM. P ROC. A NN. art. 38.22, § 3(a)(1) (Vernon 2005).

      To preserve a complaint for our review, a party must have presented to

the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling if they are not apparent from the context of the

request, objection, or motion. T EX. R. A PP. P ROC. 33.1(a)(1); Mosley v. State,

983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526

U.S. 1070, 119 S. Ct. 1466 (1990); Cabral v. State, 170 S.W.3d 761, 764

(Tex. App.—Fort Worth 2005, pet. ref’d).       Except for complaints involving

systemic requirements or rights that are waivable only, all other complaints,

whether constitutional, statutory, otherwise, are forfeited for not complying

with Rule 33.1(a). Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App.




                                       19
2004). The complaint on appeal must comport with the complaint raised to the

trial court. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004).

      In this case, appellant never presented this particular ground to the trial

court that he now brings on appeal. Instead, during the suppression hearing,

appellant argued that recording oral statements given prior to written

statements would be a better policy than the current one, which does not

require electronic recordings, because then there would be a way to preserve

the voluntariness of the statement. At no time did appellant argue that the

failure to record the verbal exchange prior to his written statement tainted the

statement and consequently violated the proper procedure for obtaining a

confession. Because appellant’s complaint on appeal does not comport with

the complaint raised at trial, we overrule appellant’s eighth point. See Cabral,

170 S.W.3d at 764.

                      V. Admissibility of DNA Evidence

      In his ninth point, appellant argues that the trial court abused its

discretion in admitting the six vaginal swabs into evidence.

A. Preservation of Error

      The State contends that appellant did not preserve his point in this matter

because, at the time he objected to the admission of the swabs, the results of

the DNA analysis obtained from this evidence were already admitted into

                                      20
evidence as State’s Exhibit 2. To preserve a complaint for our review, a party

must have presented to the trial court a timely request, objection, or motion

that states the specific grounds for the desired ruling if they are not apparent

from the context of the request, objection, or motion.      T EX. R. A PP. P ROC.

33.1(a)(1); Mosley, 983 S.W.2d at 265.

      When DNA analyst Cassie Johnson testified to the DNA results acquired

from the vaginal swabs, appellant objected to the admission of the DNA results

based on authentication because the State had not verified the chain of custody

that showed how Johnson obtained the swabs for testing.1 Appellant argued

that the results were not properly authenticated because Johnson testified that

the materials she received had been previously opened by the University of

North Texas Health Science Center (UNTHSC). Because Johnson could not

ascertain what exactly had been done at UNTHSC or who had provided the

swabs to UNTHSC, appellant argued that there was a probability of

contamination and a weak link in the chain of custody.          To answer the

objection, the State made a proffer to “link up” the chain of custody with the

witnesses who gathered the evidence. The trial court overruled appellant’s




      1
       … The DNA results, which were obtained from the vaginal swabs, were
offered into evidence as State’s Exhibit 2. The actual vaginal swabs were later
offered into evidence as State’s Exhibit 3C.

                                      21
objection, admitted the DNA results into evidence, and allowed the State to

“connect the dots” in the chain of custody.

      Subsequently, Nurse Hynson testified that she had taken and packaged

the vaginal swabs. Hynson testified that she took four swabs from D.W. as

indicated on her examination chart.         However, she further testified that

sometimes she would take more than four swabs if necessary, but that she

would change the indication on the chart accordingly. At this point, appellant

again objected to the swabs on authentication grounds because there was a

discrepancy in the number of swabs taken, four, and the number of swabs

tested, six, which indicated a level of uncertainty in the chain of custody. The

trial court overruled the objection.

      The record shows that appellant objected to the authenticity of the DNA

evidence throughout the trial.     He objected when the results of the DNA

analysis from the swabs were admitted and when a discrepancy arose regarding

the number of vaginal swabs taken. Because appellant brought his authenticity

complaint to the trial court’s attention, we hold that appellant preserved his

authentication complaint for our review. See T EX. R. A PP. P ROC. 33.1(a)(1); see

also Mosley, 983 S.W.2d at 265; Cabral, 170 S.W.3d at 764.




B. Evidentiary Ruling

                                       22
      We review a trial court’s decision to admit or exclude evidence under an

abuse of discretion standard, and we will uphold the court’s decision as long

as it lies within the zone of reasonable disagreement. Burden v. State, 55

S.W.3d 608, 615 (Tex. Crim. App. 2001); Montgomery v. State, 810 S.W.2d

372, 391 (Tex. Crim. App. 1990) (op. on reh’g); West v. State, 121 S.W.3d

95, 100 (Tex. App.—Fort Worth 2003, pet. ref’d). We will uphold the trial

court’s evidentiary ruling if it is reasonably supported by the record and is

correct under any theory of law. West, 121 S.W.3d at 100.

      To admit the results of scientific testing, such as DNA testing, a proper

chain of custody must be established. See T EX. R. E VID. 901; Durrett v. State,

36 S.W.3d 205, 208 (Tex. App.— Houston [14th Dist.] 2001, no pet.); Avila

v. State, 18 S.W.3d 736, 739 (Tex. App.—San Antonio 2000, no pet.); Astalas

v. State, No. 02-02-00237-CR, 2004 WL 2320362, at *3 (Tex. App.— Fort

Worth Oct. 14, 2004, no pet.) (mem. op., not designated for publication).

While the rules of evidence do not specifically address the issue of chain of

custody, Rule 901(a) states that the authentication or identification of an item

for admissibility is satisfied by sufficient evidence that supports a finding that

the item in question is what its proponent claims. T EX. R. E VID. 901(a); Dossett

v. State, 216 S.W.3d 7, 18 (Tex. App.—San Antonio 2006, pet. ref’d); Silva

v. State, 989 S.W.2d 64, 67 (Tex. App.—San Antonio 1998, pet. ref’d).

                                       23
Authentication or identification may be determined by different methods,

including testimony from a witness with knowledge that “a matter is what it is

claimed to be.” T EX. R. E VID. 901(b)(1); Kingsbury v. State, 14 S.W.3d 405,

407 (Tex. App.—Waco 2000, no pet.); Garner v. State, 939 S.W.2d 802, 805

(Tex. App.—Fort Worth 1997, pet. ref’d). A court will not abuse its discretion

by admitting evidence based on a belief that a reasonable juror could find that

the evidence has been authenticated or identified properly. Avila, 18 S.W.3d

at 739; see also Pondexter v. State, 942 S.W.2d 577, 586 (Tex. Crim. App.

1996), cert. denied, 522 U.S. 825 (1997).

      Proof of the chain of custody goes to the weight of the evidence and not

its admissibility. Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App.

1997), cert. denied, 522 U.S. 917 (1997); Garner, 939 S.W.2d at 805. Proof

that validates the beginning and the end of the chain of custody will support the

admission of evidence, barring any evidence of tampering or alteration. Stoker

v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989), cert. denied, 498 U.S.

951 (1990); Hall v. State, 13 S.W.3d 115, 120 (Tex. App.—Fort Worth 2000),

pet. dism’d, improvidently granted, 46 S.W.3d 264 (Tex. Crim. App. 2001).

Unless there is proof of tampering or commingling involved with the evidence,

gaps or theoretical breaches in the chain of custody will not affect the

admissibility. Lagrone, 942 S.W.2d at 617; Silva, 989 S.W.2d at 68. If the

                                       24
appellant raises any minor theoretical breaches in the chain of custody, they will

also go to the weight rather than the admissibility of the evidence. DeLeon v.

State, 505 S.W.2d 288, 289 (Tex. Crim. App. 1974); Hall, 13 S.W.3d at 120.

Additionally, showing a possibility of tampering or commingling is not sufficient

to deny admission of the evidence. Darrow v. State, 504 S.W.2d 416, 417

(Tex. Crim. App. 1974); Dossett, 216 S.W.3d at 18.

      Here, the State provided evidence to validate the beginning and the end

of the chain of custody for the vaginal swabs.          The State first offered

Johnson’s testimony that she was the analyst who performed the DNA testing

on the swabs. Johnson testified that she received, directly from the Fort Worth

Police Department, six vaginal swabs and two buccal swabs along with other

items involved with appellant’s case. She also testified that she knew the

items had previously been reviewed by UNTHSC because the evidence tape on

the box had been opened. Johnson stated that she was not sure what tests

the lab at UNTHSC ran on the swabs, but all of her tests ran properly and

without signs of contamination or tampering. Johnson later testified that she

believed that UNTHSC tested the samples for seminal fluid.

      The State then provided testimony from Hynson to establish the

beginning of the chain of custody. Hynson testified that she was responsible

for obtaining the vaginal swabs from D.W., and that after she took the swabs,

                                       25
she packaged and labeled the evidence according to the proper standards.2

After Hynson initialed everything in the evidence box, the evidence was placed

in a safe to be picked up by the Fort Worth Police Department. Hynson also

testified that she would have taken more than four swabs if there was bleeding

from any of the injuries.

       Appellant contends that the testimony from Hynson provides affirmative

proof that the swabs were tampered with because she testified that there were

only four vaginal swabs taken, but Orchid Cellmark received six vaginal swabs.

Moreover, appellant argues that because Johnson was unaware of the specific

tests performed at UNTHSC before she received the evidence, there was

additional proof of tampering or commingling.

          The discrepancy in the number of swabs taken is not affirmative proof

that the evidence was tampered with or contaminated. Hynson testified that it

was common procedure for her to take more than four swabs if the injuries




      2
        … After collecting the swabs, Hynson put the swabs into a sealed air
dryer that preserves the DNA. She remained with the samples as they dried for
twenty to thirty minutes. Once dry, the swabs were packaged, sealed, labeled,
and placed into another box, which was also sealed and labeled. The box was
then placed in a police evidence bag, which is also sealed and labeled, and
dropped into a safe for the Fort Worth Police Department to pick up. Hynson
testified that she initialed each of the labels after she identified and labeled the
source of the evidence. She also testified that she was with the swabs until
they were dropped in the evidence safe.

                                        26
were bleeding, as they were in this case. Furthermore, the possible gap in the

chain of custody concerning what tests did or did not take place at UNTHSC

represents a minor theoretical breach in the chain of custody that goes towards

the weight of the evidence and not its admissibility. See Dossett, 216 S.W.3d

at 21; Hall, 13 S.W.3d at 120. At most, appellant has shown a possibility of

tampering or commingling, which is insufficient to exclude the evidence.

Stoker, 788 S.W.2d at 10; Dossett, 216 S.W.3d at 21.

      Because there was no affirmative evidence offered to substantiate a claim

for tampering or commingling of the swabs, the trial court did not abuse its

discretion in determining that a reasonable juror could find that the swabs were

properly authenticated. See Dossett, 216 S.W.3d at 21.        Additionally, the

State substantiated the beginning and the end of the chain of custody for the

swabs. See Hall, 13 S.W.3d at 120; Dossett, 216 S.W.3d at 21. We hold that

the trial court did not abuse its discretion in admitting the evidence.     See

Burden, 55 S.W.3d at 615; Deleon, 505 S.W.2d at 289; Hall, 13 S.W.3d at

121. We overrule appellant’s ninth point.




                                      27
                                 Conclusion

      Having overruled all of appellant’s points, we affirm the trial court’s

judgment.




                                               TERRIE LIVINGSTON
                                               JUSTICE

PANEL A:     CAYCE, C.J.; LIVINGSTON and MCCOY, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: April 24, 2008




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