After finding appellant guilty of the offense of aggravated sexual assault, Tex. Penal Code Ann. § 22.021 (West Supp. 1998), the jury assessed punishment, enhanced by two prior felony convictions, at confinement for life and a fine of ten thousand dollars. Appellant asserts five points of error, contending that the trial court erred by: failing to charge the jury that their finding of guilt had to be unanimous as to the manner and means of the offense; and in points of error two through five admitting four DPS lab reports on the results of DNA testing. We will overrule appellant's points of error and affirm the judgment of the trial court.
The indictment alleged four different manner and means by which appellant on or about January 10, 1996, committed the offense of aggravated sexual assault on the victim. Appellant asserts that some of the jurors may have found appellant guilty of one of the means alleged to constitute the offense while other jurors may have found him guilty of a different means since the trial court failed to require a unanimous verdict. The indictment alleged the different manner and means of committing the offense in the conjunctive and the jury was charged as to the manner and means in the disjunctive. "It is appropriate where alternate theories of committing the same offense are submitted to the jury in the disjunctive for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted." (1) Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991). Appellant's first point of error is overruled.
In his second point of error, appellant asserts the trial court erred in admitting the written report of DPS chemist Gary Molina regarding DNA testing of samples obtained from a vaginal swab of the victim and blood taken from appellant. Molina testified in detail regarding the DNA procedure he used in determining the source of the sperm found on the vaginal swab. The objected-to exhibit was a letter Molina wrote to the Austin Police Department that stated that appellant "cannot be excluded from having contributed a portion of the DNA detected on the sperm cell fraction of the vaginal swab . . . ." Appellant objected to the introduction of Molina's letter as hearsay, stating that "the report is a written report of his findings . . . and the witness is here and has testified to the matters in the exhibit."
Patently, the exhibit is hearsay. However, by appellant's objection he has admitted that the same testimony was already in evidence. Under these circumstances, appellant cannot be heard to complain where the evidence has been conveyed to the jury in some other form. See Ford v. State, 919 S.W.2d 107, 117 (Tex. Crim. App. 1996); Venhaus v. State, 950 S.W.2d 158, 165 Tex. App.--El Paso 1997, pet. ref'd). Moreover, Molina testified without objection that combining his testimony with that of Michelle Lockhoof, a forensic DNA analyst employed by DPS (who had testified earlier), he could extrapolate that the frequency of appellant's DNA type would occur in 1 out of every 316,455,699 African Americans. This testimony would appear to be far more damaging than anything contained in the objected-to report. Appellant's second point of error is overruled.
In his third point of error appellant contends the trial court erred in admitting the report of DPS chemist Molina at the punishment phase of the trial regarding an extraneous offense alleged to have been committed against J.R., a different victim, in December, 1995. Molina testified he examined blood samples from J.R.'s boyfriend and appellant as well as vaginal swabs and blood samples from J.R. As a result of his DNA testing, Molina was able to exclude J.R.'s boyfriend as the donor of seminal fluid in J.R.'s sexual organ. However, he was unable to exclude appellant as having deposited the semen on the vaginal swab. When Molina's letter containing his findings was offered in evidence, appellant objected that the report itself was hearsay and the witness was present and available to testify as to the facts. While the report may have been different in form from Molina's testimony, Molina testified without objection to essentially the same conclusions set out in his letter without objection. Appellant's objections in the trial court as to improper chain of custody and invalid search are not before us on appeal. We perceive no error in the admission of the complained-of exhibit. Appellant's third point of error is overruled.
In his fourth point of error, appellant complains of the admission into evidence of a report compiled by Molina reflecting the results of a different DNA procedure than the one used in previous texts. The report, in letter form, showed test results that could not exclude appellant as the donor of sperm found on J.R.'s vaginal swab. Again, appellant objected that the report was hearsay and that the witness was present and available to testify. Molina testified without objection as to his findings incriminating appellant as the donor of the sperm on J.R.'s vaginal swab. We find our disposition of prior points of error regarding DNA written findings dispositive of appellant's fourth point of error.
In his fifth point of error, appellant contends that the trial court erred in admitting into evidence the letter of Michelle Lockhoof reporting her DNA findings that could not exclude appellant as the semen donor on J.R.'s vaginal swab. Lockhoof testified in detail as to the procedure she used in DNA testing that resulted in her conclusion that matched known sperm of appellant with that found on the vaginal swab taken from J.R. Appellant voiced the same objection as he had to previous exhibits. The letter was a summary of her findings about which she had testified without objection. Appellant's fifth point of error is overruled.
The judgment is affirmed.
Tom G. Davis, Justice
Before Justices Powers, Aboussie and Davis*
Affirmed
Filed: July 16, 1998
Do Not Publish
* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).
1. The trial court instructed the jury that the State had the burden of proving appellant guilty by proving each and every element of the offense beyond a reasonable doubt. Appellant does not challenge the sufficiency of the evidence to support the conviction.
eyed to the jury in some other form. See Ford v. State, 919 S.W.2d 107, 117 (Tex. Crim. App. 1996); Venhaus v. Sta