Affirmed and Memorandum Opinion filed August 1, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00384-CR
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WILLIAM E. ALEXANDER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1012929
M E M O R A N D U M O P I N I O N
Appellant, William E. Alexander, appeals his conviction for sexual assault of a child and ten-year sentence in the Texas Department of Criminal Justice, Institutional Division. On appeal, appellant complains the trial court erred (1) in admitting evidence when no chain of custody had been established, (2) in denying his motion to suppress, and (3) in admitting outcry testimony. We affirm.
Background
Appellant is the father of the complainant, B.J., who was 14 years old at the time of the offense. B.J.=s mother, Ronda Banks, and appellant were never married and they never lived in the same house. B.J. lives with his mother and stepfather. On March 13, 2004, Banks took B.J. to stay with appellant over spring break. Appellant lived with his grandmother, Letha Franklin. Franklin=s stepson, AJitterbug,@ also lived in the same house.
Franklin=s house has three bedrooms. On the night of March 13, Franklin and Jitterbug were in their respective bedrooms. B.J. was in the third bedroom watching TV when appellant came into the room. B.J. testified that he knew what appellant wanted when he came into the bedroom.[1] When appellant asked B.J. if he could lay in the bed, B.J. said, ASure. It=s yours,@ and slid over. Appellant started touching B.J., grabbed his hand, and put it on his penis. B.J. then proceeded to give appellant oral sex. Before ejaculating, appellant told B.J. to stop. Appellant grabbed a sheet, got up from the bed, went over to the chair, and ejaculated. After that, appellant proceeded to perform oral sex on B.J. B.J. told appellant to stop and said he needed to make a phone call. Appellant told B.J. to hurry back and waited in the bedroom.
B.J. went to the living room and called his best friend, Christian Silver, and told her what happened. Silver persuaded him to call his mother, which he did right after that. B.J. asked Banks to pick him up A[b]ecause I just had sex with Daddy.@ He did not want to return to the bedroom and called Silver again because he did not want Ato just be sitting there not on the phone.@ While he was on the phone, B.J. saw flashing lights and heard a knock on the door. B.J. answered the door, with appellant right behind him. Officer Jorge Pena, who was responding to a call for sexual assault of a child, was at the door. When Pena asked B.J. if anyone had called the police, appellant said ANobody called the police.@[2] Pena noticed that B.J. was holding a bowl. When an ambulance pulled up, B.J. ran past Pena toward it. Pena followed B.J. to the ambulance. When Pena asked B.J. if everything were okay, B.J. said appellant had sexually assaulted him. Pena testified that B.J. told him he had performed oral sex on appellant and spit in a bowl to collect evidence.[3]
About this time, B.J.=s mother and stepfather arrived at the scene. Banks followed appellant into the house. Pena found Banks and appellant arguing. Pena pulled Banks away from appellant and told her she was interfering with a police investigation. Pena then handcuffed appellant, escorted him out of the house, put him the patrol car, and called for backup. Pena returned to the house and went into the bedroom that B.J. had pointed out as the location where the sexual assault had occurred. Pena collected the bed sheets. Pena also used gauze to collect evidence from the bowl into which B.J. had spit.
DNA from sperm found on the bed sheet matched appellant=s DNA.[4] DNA from sperm found on B.J.=s boxer shorts matched B.J.=s DNA. Tests on the gauze revealed no sperm or semen.
Chain of Custody
In his first point of error, appellant claims the trial court erred by admitting a bed sheet containing his sperm cell DNA into evidence when no chain of custody had been established and no identification had been made. Appellant complains the error is not harmless because the presence of his DNA to some small extent tends to corroborate B.J.=s testimony that appellant ejaculated into the sheet.
The Texas Rules of Evidence do not specifically address the issue of chain of custody. Simmons v. State, 944 S.W.2d 11, 12 (Tex. App.CTyler 1996, pet. ref=d). However, Rule 901 provides A[t]he 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 its proponent claims.@ Tex. R. Evid. 901 This can be accomplished through the testimony of a witness with knowledge that an item is what it is claimed to be. Davis v. State, 992 S.W.2d 8, 11 (Tex. App.CHouston [1st Dist.] 1996, no pet.).
Appellant argues the white sheet is an item like millions of others, with absolutely no special identifiable characteristics. Appellant points out that Officer Pena gave no indication there were any stains, marks, tears, or other characteristics to distinguish the sheet from others exactly like it. Pena did not mark the sheet or the paper bag Franklin gave him for identification purposes.
A>[I]f the offered evidence is of such a nature as not to be readily identifiable, or to be susceptible to alteration by tampering or contamination, sound exercise of the trial court=s discretion may require a substantially more elaborate foundation.=@ Hammett v. State, 578 S.W.2d 699, 708 (Tex. Crim. App. 1979) (quoting McCormick=s Handbook on the Law of Evidence, 527 (2d ed., E. Cleary ed. 1972)). However, when there is no evidence of tampering, an objection that the State failed to establish a proper chain of custody goes to the weight of the evidence, rather than admissibility. Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997); Bird v. State, 692 S.W.2d 65, 70 (Tex. Crim. App. 1985); Parr v. State, 606 S.W.2d 928, 930 (Tex. Crim. App. 1980). Although appellant objected to the admission of the sheets into evidence on the ground Athat the chain of custody has not been properly proven in this case,@ we find nothing in the record showing that he raised the issue of tampering. Because appellant=s objection did not challenge the admissibility of the evidence, his first point of error is overruled.
Motion to Suppress
In his second point of error, appellant claims the trial court violated his federal constitutional rights when it denied his motion to suppress evidence that was seized without a warrant because there were no exigent circumstances.[5] We review the trial court=s ruling on a motion to suppress for an abuse of discretion. Dyar v. State, 125 S.W.3d 460, 462 (Tex. Crim. App. 2003). At the hearing on a motion to suppress, the trial court is the sole judge of the weight and credibility of the evidence. Wood v. State, 18 S.W.3d 642, 646 (Tex. Crim. App. 2000). When there are no explicit findings of historical fact, we review the evidence in the light most favorable to the trial court=s ruling and assume that the trial court made implicit findings of fact supported in the record. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005); Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005). We will sustain the trial court=s ruling if it is correct on any theory of law applicable to the case. Swain, 181 S.W.3d at 365.
Warrantless searches and seizures inside a home are presumptively unreasonable. Olivarez v. State, 171 S.W.3d 283, 288 (Tex. App.CHouston [14th Dist.] 2005, no pet.). To support a warrantless search, probable cause, in combination with some sort of exigent circumstances, must exist. Estrada, 154 S.W.3d at 609. Exigent circumstances include (1) rendering aid or assistance to persons whom the officers reasonably believe are in need of assistance; (2) preventing destruction of evidence or contraband; and (3) protecting the officers from persons whom they reasonably believe to be present and armed and dangerous. Id. at 608 n.12.
With regard to the possible destruction of evidence, the State must show the police could have reasonably concluded that the evidence would be destroyed or removed before they could obtain a search warrant. McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991). Factors relevant to this determination include (1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the evidence is about to be removed; (3) the possibility of danger to police officers guarding the site of the evidence while a search warrant is sought; (4) information indicating the possessors of the evidence are aware that the police are on their trail; and (5) the ready destructibility of the evidence. Id. (quoting United States v. Rubin, 474 F.2d 262, 268 (3d Cir. 1973)).
The trial court conducted a hearing on appellant=s motion to suppress. At the hearing, Pena testified that before he attempted to recover any evidence, he requested a crime scene unit that specializes in collecting evidence, but was informed that the crime scene units were engaged elsewhere. Pena received instructions from the investigator regarding how to proceed regarding the recovery of evidence, but never attempted to obtain a search warrant for the recovery of evidence in the house.
When Pena entered the house, he saw an older couple (Letha Franklin and her stepson, Jitterbug) he believed were the owners of the house. However, he did not inquire into who owned the house. Pena told them he needed to collect some evidence. According to Pena, Franklin and Jitterbug did not act like they knew what was going on. B.J. had pointed out to Pena in which bedroom the sexual assault had occurred. Pena looked around the bedroom because B.J. had told him that after the sexual assault, appellant had Apossibly gone somewhere else to ejaculate.@ Pena collected the sheets on the bed and Abasically asked if [he] could take the sheets and [Franklin] said it was okay as long as [he got] them back to her.@
Because appellant was in custody, and the older couple in the house, by Pena=s admission, had no idea what was going on, he contends there is nothing to suggest that anyone had any knowledge about the offense or that Pena was going to seize the sheets before he entered the house and announced his intent to remove them. Appellant also argues sheets are not easily destroyed or disposed of like narcotics that might easily be flushed down a toilet.
Contrary to appellant=s arguments, we find exigent circumstances were present. Pena explained that because he was concerned about preserving evidence in a sexual assault case, he needed to collect the evidence as quickly as he could. Pena also observed that there were two individuals present in the house who lived with appellant and knew the police were conducting an investigation. Evidence of semen could be lost if the sheets were removed or cleaned. Under these circumstance, Pena could have reasonably concluded that the bed sheets would not remain unaltered or unmoved while he acquired a search warrant. Appellant=s second point of error is overruled.
In his third point of error, appellant complains the trial court violated his rights under Article I, ' 9 of the Texas Constitution when it denied his motion to suppress. ATo brief a state constitutional issue adequately, appellant must present specific arguments and authorities supporting his contention under the Texas Constitution.@ Bell v. State, 90 S.W.3d 301, 305 (Tex. Crim. App. 2002). Because appellant has failed to do this, his third point of error is overruled.
Hearsay Testimony
In his fourth point of error, appellant claims it was error for the trial court to admit outcry testimony over his objection without holding a hearing pursuant to the Aoutcry@ statute. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005) (providing for the admission of hearsay testimony in the prosecution of certain offenses committed against children twelve years or younger). The outcry statute creates an exception to the hearsay rule for statements made by a child who is a victim of sexual abuse. Id. Outcry testimony from the first adult to whom the child made statements describing the alleged offense will not be inadmissible because of the hearsay rule if certain requisites are met. Chapman v. State, 150 S.W.3d 809, 812 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). Appellant complains of Pena=s testimony regarding B.J.=s statements to him because Pena was not the first adult to whom B.J. disclosed the alleged offense.
The outcry statute, however, is not applicable to this case because B.J. was fourteen when the charged offense occurred. See Marquez v. State, 165 S.W.3d 741, 746 (Tex. App.CSan Antonio 2005, pet. ref=d) (holding outcry statute applies to children who have yet to reach their thirteenth birthday); Chapman, 150 S.W.3d at 812 (explaining outcry statute creates an exception to the hearsay rule in the prosecution of sexual offenses committed against a child twelve years or younger).
Appellant also asserts B.J.=s statement to Pena about the sexual assault does not meet the requirements of the excited utterance exception to the rule against hearsay. Appellant argues it was not an excited utterance because B.J. had willingly engaged in sexual contact with appellant, had spoken to his mother and a friend before he spoke with Pena, and had secured a bowl of saliva because he thought it might contain DNA. Appellant argues this behavior seems more calculating than distressed, and can hardly be considered spontaneous.
Pena testified, without objection, that he followed B.J. to the ambulance where B.J. told him that appellant had sexually assaulted him, that he performed oral sex on appellant, and that he spit into a bowl to collect evidence. When the prosecutor asked Pena how he found out in which bedroom the assault had occurred, Pena testified that B.J. identified the bedroom where the sexual assault occurred. Appellant objected on the basis of hearsay, and the trial court sustained his objection. Appellant, however, did not ask for an instruction to disregard. The State then questioned Pena about B.J.=s emotional state at the time. Pena testified that B.J. was in an emotional state, i.e, that he was disturbed and distraught. Again, the prosecutor asked Pena about the location of the bedroom and appellant objected on the basis of hearsay. The trial court overruled appellant=s objection. Pena, again, testified that B.J. pointed out the bedroom where the assault occurred. When Pena then testified that B.J. told him that he was forced to perform oral sex on appellant, appellant objected on the basis of hearsay and requested a running objection for hearsay. The trial court overruled the objection and granted appellant a running objection.
With regard to Pena=s testimony that B.J. told him that appellant had sexually assaulted him, that he performed oral sex on appellant, and that he spit into a bowl to collect evidence, appellant failed to object and, therefore, has not preserved error on appeal. See Haley v. State, 173 S.W.3d 510, 516 (Tex. Crim. App. 2005) (stating that to preserve error, the record must show (1) appellant made a timely and specific request, objection or motion; and (2) the trial court either ruled on the request, objection or motion, or it refused to rule and the complaining party objected to that refusal). With respect to Pena=s testimony that B.J. pointed out in which bedroom the assault occurred, we conclude appellant waived any error by failing to pursue his objection to an adverse ruling when he did not request an instruction to disregard after the trial court had sustained his objection. See Caron v. State, 162 S.W.3d 614, 617 (Tex. App.CHouston [14th Dist.] 2005, no pet.) (explaining that failure to pursue objection to an adverse ruling after an objection has been sustained preserves nothing for review because defendant receive all relief requested).[6]
With regard to the remainder of Pena=s testimony regarding what B.J. told him during the conversation they had in the ambulance, we find that such statements were an excited utterance. An excited utterance is A[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.@ Tex. R. Evid. 803(2). When ascertaining if a statement is an excited utterance under Rule 803(2) of the Rules of Evidence, the crux of the inquiry is A>whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event.=@ King v. State, 953 S.W.2d 266, 269 (Tex. Crim. App. 1997) (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992), overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994)). The excited utterance exception is based on the assumption that the declarant is not, at the time of the statement, capable of the kind of reflection that would enable him to fabricate information. Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). We review a trial court=s ruling on the admission of a statement under the excited utterance exception to the hearsay rule for an abuse of discretion. Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006).
Pena testified that B.J. appeared to be disturbed and distraught at the time he told B.J. that appellant had sexually assaulted him. During subsequent examination, when the prosecutor again asked Pena about B.J.=s emotional state at the time of the statement, Pena stated B.J. was very upset and traumatized. Pena also testified that when the ambulance pulled up, B.J. ran past him toward it, indicating that B.J. was upset. We do not find the trial court abused its discretion in allowing B.J.=s statements through Pena=s testimony.
Even if the trial court committed error, we conclude that such error is harmless. Under Rule 44.2(b) of the Texas Rules of Appellate Procedure, any nonconstitutional error that does not affect appellant=s substantial rights must be disregarded. Tex. R. App. P. 44.2(b). The erroneous admission of evidence does not affect substantial rights if the reviewing court, A>after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.=@ Guevara v. State, 152 S.W.3d 45, 53 (Tex. Crim. App. 2004) (quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)).
In assessing the likelihood that the error adversely affected the jury=s decision, the reviewing court should consider everything in the record, including any testimony or physical evidence admitted for the jury=s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. Haley, 173 S.W.3d at 518. We may also consider the jury instructions, the State=s theory and any defensive theories, closing arguments, voir dire, and whether the State emphasized the error. Id. at 518B19. An appellate court will not reverse a conviction if it has A>fair assurance that the error did not influence the jury, or had but a slight effect.=@ Herring v. State, 147 S.W.3d 390, 396 (Tex. Crim. App. 2004) (quoting Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).
Here, the same evidence came in through B.J.=s testimony without objection. B.J. described the sexual assault in detail, i.e., that appellant started touching him and put his hand on appellant=s penis; that B.J. gave appellant oral sex, but stopped before appellant ejaculated; that appellant ejaculated in another part of the room; and that appellant performed oral sex on B.J. AIt is well established that questions regarding the admission of evidence are rendered moot if the same evidence is elsewhere introduced without objection; any error in admitting evidence over a proper objection is harmless if the same evidence is subsequently admitted without objection.@ Chamberlain v. State, 998 S.W.2d 230, 235 (Tex. Crim. App. 1999). Therefore, we find the error, if any, did not influence the jury, or had but a slight effect. Appellant=s fourth point of error is overruled.
Accordingly, the judgment of the trial court is affirmed.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Memorandum Opinion filed August 1, 2006.
Panel consists of Justices Hudson, Fowler, and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] B.J. testified that appellant started touching him before he was ten years old and it progressed to performing oral sex. B.J. estimated that he had performed oral sex on appellant between 10 and 20 times prior to this occasion.
[2] B.J. had not asked his mother to call the police and he did not know the police had been called. It was later determined that B.J.=s stepfather had called the police.
[3] B.J. testified he feared no one would believe him. He thought appellant=s DNA might be in his spit because appellant=s penis had been in his mouth, even though appellant did not ejaculate until he got up and left the bed.
[4] It was not possible to determine when the sperm was actually deposited on the sheet.
[5] Appellant also argues Pena did not have consent to conduct a warrantless search. Because we conclude exigent circumstances were present, we need not address whether Pena had obtained consent.
[6] The proper method by which to pursue an objection to an adverse ruling and preserve error is to (1) object, (2) request an instruction to disregard, and (3) move for a mistrial. Caron, 162 S.W.3d at 618 n.3.