Affirmed and Memorandum Opinion filed October 1, 2013.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-12-00815-CR

                 THOMAS BRADLEY HAYNES, Appellant,
                                       V.

                     THE STATE OF TEXAS, Appellee.

                   On Appeal from the 182nd District Court
                               Harris County
                       Trial Court Cause No. 1351660

                MEMORANDUM                     OPINION


      Appellant Thomas Bradley Haynes appeals his conviction for aggravated
sexual assault of an elderly person, arguing the inadmissibility of both the
complainant’s in-court identification of Haynes and the DNA analysis. We affirm.
                                                  I

       On the early morning of June 13, 2011, the complainant, a seventy-two-
year-old woman, was at home alone. She woke up early to the sound of her dog
barking and got up to check things around the house. When she did not see
anything, she lay down on the couch. Then, according to the complainant, a naked
man she later identified as Haynes jumped up from behind the couch, physically
overpowered her, forced her to her bedroom, and raped her. The complainant said
she was sexually assaulted vaginally and anally during the attack, which lasted “a
couple hours.” After the police arrived, the complainant went to Memorial
Hermann Hospital, where a nurse performed an exam and prepared a sexual-
assault kit. Charges were filed against Haynes when DNA found in the sexual-
assault kit identified him in a database. Haynes entered a plea of not guilty.

       At trial, the complainant identified Haynes as her assailant in front of the
jury after the trial court overruled a motion to suppress the identification. The
complainant testified that her in-court identification was based on the
approximately two hours she spent with her assailant because there was sufficient
light during the attack and she could see his face. Additionally, she previously saw
her attacker about a week before the assault when she found him hiding in her
closet.1 The complainant described her assailant to police and a composite drawing
was prepared based on the complainant’s description. There is no indication in the
record that the complainant changed her description during investigation or trial.2


       1
          The complainant testified she saw her attacker about a week before the assault when she
discovered him hiding in her bedroom closet. When the complainant screamed, the intruder went
out the window. The complainant testified she did not call the police at that time because she
assumed she did not have enough proof to show anyone had been there. She also testified she did
not tell her family about finding a man in her closet because she thought they would make her
move in with one of them.
       2
           The complainant did testify that Haynes looked a little different at trial because he had
                                                  2
       Before trial, the complainant identified Haynes from a photo lineup as the
man who attacked her. During the investigation, Houston Police Department
Detective Keith McMurtry showed the complainant a photo array containing
Haynes. After looking at the photos, the complainant chose Haynes’s photo and
told Detective McMurtry “that’s probably him.” The complainant testified she
meant “he looked more like [her attacker] than anyone on that piece of paper,” and
she was “90 to 95 percent sure” it was him. After the complainant selected
Haynes’s photo, Detective McMurtry told her Haynes had been charged with the
crime because his DNA matched the DNA recovered from the swabs in the sexual-
assault kit.

       At trial, several witnesses testified about the process used to determine that
DNA evidence linked Haynes to the attack.

       First, Floyd Hand, a forensic nurse, testified he examined the complainant
and prepared the kit at the hospital. The sexual-assault kit and its contents were
labeled as State’s Exhibits 21−29, and they were admitted into evidence during
Hand’s testimony after Haynes’s counsel affirmatively stated he had “no
objection.” Hand testified he followed his usual practice of sealing the samples in
the box and labeling the box with identifying information. Hand then signed the
sealed box into an evidence locker at the hospital, which is accessible only by
forensic nurses. Looking to the evidence log, Hand testified Sandra Martin, a
person employed by Forensic Nursing Services, turned the box over to a Houston
Police Department officer, who signed for the box. The State did not call Martin or
the transporting officer to testify at trial, even though the State filed a subpoena list
that included additional witnesses.


longer hair and was not as thin, but she testified that “other than that” Haynes was the same man
who attacked her.

                                               3
      Later in the trial, Juli Rehfuss, with the Houston Police Department Crime
Lab, testified she processed the sexual-assault kit to prepare it for DNA analysis.
According to Rehfuss, when she first gets a kit, she inspects it to make sure it is
properly sealed and to make sure the information on the label corresponds to the
case file. Rehfuss testified she followed her usual practice in this case; she
determined the sexual-assault kit was sealed and there was no evidence of
tampering. Rehfuss broke the seal to process the contents.

      After processing, Clay Davis, also with the Houston Police Department
Crime Lab, performed DNA analysis on these items. Davis compared Haynes’s
DNA sample to the DNA found in the kit. By doing the comparison, Davis
determined: 1) Haynes was a possible contributor to the DNA mixture found in the
vaginal swab, and 2) “to a reasonable degree of scientific certainty,” Haynes was
the source of the DNA found on the anal swab.

      The jury found Haynes guilty of aggravated sexual assault of an elderly
person, enhanced with one prior felony conviction, and assessed his punishment at
75 years in the penitentiary.

                                          II

      On appeal, Haynes argues the trial court abused its discretion in admitting:
(1) the complainant’s in-court identification because it had been tainted by the
suggestive pre-trial procedure, and (2) DNA evidence linking Haynes to the attack
because the State did not show the proper predicate.

      We review the trial court’s admission of evidence using an abuse-of-
discretion standard. See Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App.
2005); Nickerson v. State, 312 S.W.3d 250, 255 (Tex. App.—Houston [14th Dist.]
2010, pet. ref’d). Although a trial court has substantial discretion, it can abuse its


                                          4
discretion if its rulings are outside of “that zone within which reasonable persons
might disagree.” Nickerson, 312 S.W.3d at 255. A trial court’s evidence ruling will
be upheld if the record reasonably supports the ruling. Id.

                                          A

      Haynes first complains that the trial court should have suppressed the in-
court identification. Detective McMurtry, Haynes argues, impermissibly bolstered
the identification in the complainant’s mind when he told her that the man she
selected from a photo lineup had already been charged. In response, the State
argues the trial court did not err because the detective’s statements during the
photo array were not so suggestive as to create a “substantial likelihood of
irreparable misidentification” and because the in-court identification was reliable.
Because the complainant saw her assailant face-to-face during the attack and could
describe him after, the State argues the in-court identification was sufficiently
reliable for the trial court to admit it, even if Detective McMurtry’s statements
were suggestive.

      An in-court identification is inadmissible when it has been tainted by an
impermissibly suggestive pretrial photographic identification. Ibarra v. State, 11
S.W.3d 189, 195 (Tex. Crim. App. 1999). The test is whether “the photographic
identification procedure was so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.” Id.

      Courts weigh five non-exclusive factors “against the corrupting effect of any
suggestive identification procedure” to determine the reliability of an in-court
identification from the totality of the circumstances: (1) the opportunity for the
witness to view the criminal at the time of the offense; (2) the witness’s degree of
attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the
level of certainty demonstrated at confrontation; and (5) the length of time between
                                           5
the crime and the confrontation. Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim.
App. 2008). We consider these factors in the light most favorable to the trial
court’s ruling, but once the facts are determined, we weigh the reliability against
“the corrupting effect” of the suggestive pretrial identification de novo.        See
Loserth v. State, 963 S.W.2d 770, 773−74 (Tex. Crim. App. 1998). When
examining the factors, the burden is on the defendant to show by clear and
convincing evidence the in-court identification is unreliable. Harris v. State, 827
S.W.2d 949, 959 (Tex. Crim. App. 1992).

      In Luna, the court held that although an investigating officer’s statement that
the complainant had selected “the right guy” from a photo array may have been
suggestive, it was not so suggestive to cause irreparable misidentification when
there was sufficient evidence the in-court identification was reliable. Luna, 268
S.W.3d at 608. In Luna, which concerned a carjacking, several factors pointed to
the reliability of the in-court identification: (1) the complainant had an opportunity
to view the person who carjacked him face-to-face for ten to twenty minutes; (2)
he could describe the carjacker to the police; and (3) he seemed “positive” when he
chose the defendant from a photo array a week after the crime. Id.

      Like the officer’s statements in Luna, Detective McMurtry’s comment to the
complainant that the man she selected had already been charged may have been
suggestive. See id. However, considering the reliability factors, the complainant’s
in-court identification is sufficiently reliable. The complainant could see her
assailant face-to-face in sufficient lighting during the attack, which lasted a couple
of hours. She also saw him the prior week when she found him in her closet.
Because of the nature of the attack, the complainant’s attention was focused on her
assailant. Additionally, the complainant could describe her attacker to police and
for the composite drawing before seeing the photo array. These descriptions did

                                          6
not contradict her identification of Haynes at trial. Weighing these reliability
factors against the suggestiveness of McMurtry’s comments, there is no substantial
risk of irreparable misidentification. See id.; see also Ibarra, 11 S.W.3d at 195.

      Haynes argues that Luna is distinguishable because the complainant was
“positive” when he made his selection from the photo array, while the complainant
in the instant case was only “90 to 95 percent sure.” See Luna, 268 S.W.3d at 608.
Haynes urges this difference makes Detective McMurtry’s statements more
suggestive than those made by the officer in Luna. See id. The use of an alternate
descriptor in this case, which arguably is no different functionally, does not make
McMurtry’s comments so suggestive to rise to the level of creating irreparable
misidentification. See Ibarra, 11 S.W.3d at 195; see also Luna, 268 S.W.3d at
605−08. Further, the “level of certainty” demonstrated by the witness is just one
factor considered from the totality of circumstances. See Luna, 268 S.W.3d at 605.

      The trial court did not err in allowing the in-court identification testimony
before the jury, and Haynes’s first issue on appeal is overruled.

                                          B

      In his second issue, Haynes argues testimony showing DNA collected from
the complainant for the sexual-assault kit contained Haynes’s DNA should have
been excluded. According to Haynes, the State did not properly demonstrate the
chain of custody of the evidence swabs. In response, the State first argues Haynes
did not preserve this issue for appellate review. Alternatively, the State argues the
chain of custody was properly shown.

                                          1

      The State argues Haynes did not preserve the issue for appeal because he did
not make a timely and specific objection to the evidence every time it was

                                          7
presented at the trial court. See Tex. R. App. P. 33.1(a); see also Hudson v. State,
675 S.W.2d 507, 511 (Tex. Crim. App. 1984) (holding counsel must object every
time allegedly inadmissible evidence is offered at trial to preserve error). More
specifically, Haynes did not object during Hand’s testimony, which is when the
sexual-assault kit was admitted into evidence, and he affirmatively said he had “no
objection” when a demonstrative chart summarizing Davis’s testimony was
admitted into evidence.

      In his appellate brief, without specifically addressing the preservation issue
or citing any cases, Haynes states his counsel began objecting during Rehfuss’s
testimony, and continued to object prior to and during Davis’s “incriminating”
testimony.

      Even assuming Haynes preserved the issue for appeal, looking to the merits,
the trial court properly overruled the chain-of-custody objection.

                                            2

      Haynes argues the trial court erred when it admitted the DNA evidence
because the State failed to show it was “treated and maintained with the utmost,
well-documented care.” More specifically, the transporting officer and the nurse
who turned the kit over to the police did not testify at trial.

      According to evidence rules, the authentication or identification requirement
is satisfied by “evidence sufficient to support a finding that the matter in question
is what its proponent claims.” Tex. R. Evid. 901(a). To meet this evidentiary
requirement, a proponent of scientific testing results, such as the DNA analysis in
this case, must establish a chain of custody. See Smith v. State, 450 S.W.2d 92, 94
(Tex. Crim. App. 1970). Without evidence of tampering or impropriety, most
objections regarding breaks in the chain of custody go to the weight of the


                                            8
evidence, rather than its admissibility. Lagrone v. State, 942 S.W.2d 602, 617
(Tex. Crim. App. 1997).

        Proof of the beginning and end of the chain of custody is sufficient; a
proponent of evidence does not need to show a “moment-by-moment” account of
the evidence to support its admission. Shaw v. State, 329 S.W.3d 645, 654 (Tex.
App.—Houston [14th Dist.] 2010, pet. ref’d) (holding the State established a
complete and proper chain of custody of DNA swabs, even when witnesses who
handled the evidence during transport did not testify); See also Caddell v. State,
123 S.W.3d 722, 727−28 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)
(holding testimony by a lab official explaining the evidence was sealed and
properly labeled to show it was the substance seized by officers established the
chain of custody, even when nobody testified to transporting the evidence to the
lab).

        In this case, the State established, through testimony explaining the
procedures at the hospital and at the crime lab, that the swabs taken from the
complainant were the same items tested for DNA: the swabs were labeled and
sealed at the hospital, placed in an evidence locker, and then checked for any
impropriety upon arrival at the lab. By proving the beginning and end of the chain
of custody through the testimony of the nurse and the crime-lab employee, the
State established the proper predicate for the DNA evidence. See Caddell, 123
S.W.3d at 727−28. Because the crime-lab employees testified that there was no
evidence of tampering during transport, the DNA evidence was admissible, and
Haynes’s second point of error is overruled. See Lagrone, 942 S.W.2d at 617.

                                      ***

        In sum, Haynes failed to show the trial court erred by allowing the
complainant to identify Haynes in court or by admitting DNA evidence linking
                                        9
Haynes to the attack. We therefore overrule his issues and affirm the judgment of
the trial court.




                                     /s/    Jeffrey V. Brown
                                            Justice



Panel consists of Justices Brown, Christopher, and Donovan.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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