COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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BRADLEY PATTERSON, No. 08-13-00152-CR
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Appellant, Appeal from
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v. 384th District Court
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC # 20110D03011)
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OPINION
Bradley Patterson appeals his conviction of aggravated sexual assault of a child. A jury
found Appellant guilty and assessed his punishment at imprisonment for thirty-eight years.
Finding no error, we affirm.
FACTUAL SUMMARY
On June 10, 2011, seven-year-old J.H. was playing soccer outside her apartment with
some other children. She had ripped her pink and black soccer ball while playing with it the
week before and Appellant offered to give her a new ball if she would go with him. When J.H.
agreed, Appellant took her by the hand and led her to what she described as an old apartment in
the back with a lot of furniture in it. Once inside the apartment, J.H. began yelling. Appellant
picked up a roll of duct tape and threatened to tape her mouth if she did not stop yelling.
Appellant initially choked her and then pulled down her shorts and underwear. After putting J.H.
on the floor, Appellant pulled down his pants and she could see his private part. Appellant then
climbed on top of J.H. and put his private part on her private part. She specifically testified that
his private part touched her private part. Appellant moved up and down on her and she felt some
liquid on her private part. J.H. described these events in her testimony and she also used
anatomically correct dolls to demonstrate what Appellant did. Afterward, Appellant pulled up
his pants and instructed J.H. to pull up her pants. Appellant told J.H. that he would kill her
family if she called the police and he instructed her to count to ten before she left the apartment.
J.H. counted to ten and ran back to her apartment where she told her older sister, L.R., what had
happened. J.H. asked her not to call the police because Appellant had threatened to kill them if
she did. L.R. called the police despite the threat.
The El Paso Police Department did not direct that a sexual assault examination be
performed, but Detective Oscar Morales later collected the underwear J.H. was wearing at the
time of the assault.1 The evidence was submitted to the Texas Department of Public Safety for
testing and Christine Ceniceros, a DNA analyst, found semen on the underwear. Ceniceros
compared a buccal swab collected from Appellant and determined that the DNA on the
underwear belonged to Appellant.
ADMISSION OF THREATS
In Issue One, Appellant contends that the trial court abused its discretion by permitting
the State to “repeatedly present” to the jury evidence that Appellant threatened to kill the victim
and her family if she called the police because the State did not give him notice of its intent to
1
The police sergeant who made the decision admitted it was a mistake not to direct that a sexual assault
examination be performed.
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introduce this extraneous evidence as required by TEX.R.EVID. 404(b). The State responds that
(1) Appellant failed to preserve error by objecting each time a witness testified about the threat,
(2) the threat evidence was admissible as same transaction contextual evidence so it was not
required to give notice under Rule 404(b), and (3) it gave Appellant notice of its intent to
introduce the threat evidence if notice is required.
Preservation of Error
The Rules of Appellate Procedure require a party to preserve error by making a timely
and specific objection. TEX.R.APP.P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349
(Tex.Crim.App. 2002); Peralta v. State, 338 S.W.3d 598, 609 (Tex.App.--El Paso 2010, no pet.).
With two exceptions, a party must continue to object every time inadmissible evidence is
offered. Peralta, 338 S.W.3d at 609, citing Ethington v. State, 819 S.W.2d 854, 858
(Tex.Crim.App. 1991). The two exceptions require counsel to either (1) obtain a running
objection, or (2) request a hearing outside the presence of the jury and object to all of the
evidence he deems objectionable on a given subject. Martinez v. State, 98 S.W.3d 189, 193
(Tex.Crim.App. 2003); Ethington, 819 S.W.2d at 858-59. Evidentiary error is not preserved
when the same evidence is admitted elsewhere without objection. Peralta, 338 S.W.3d at 609.
In his brief, Appellant identifies three instances where the State utilized the threat
evidence. First, during opening statements, the prosecutor informed the jury that the State would
present evidence that Appellant told J.H. that he would kill her and her family if she called the
police. Appellant objected that this was an extraneous offense, but he did not object to a lack of
notice. Second, Appellant objected that he had not been given notice of the extraneous offense
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when the State elicited the threat evidence during J.H.’s testimony. Third, the victim’s mother,
G.H., testified without objection that J.H. was scared and did not want to say exactly what had
happened because Appellant had threatened her. As noted by the State, Appellant did not object
to testimony by the victim’s older sister, L.R., that J.H. did not want her to call the police
because Appellant had threatened to kill them if they called the police.
Appellant did not obtain a running objection, nor did he object in a hearing outside of the
jury’s presence to all of the threat evidence. Thus, he was required to object every time a witness
testified about the threat to preserve error. Having failed to do so, Appellant waived the
complaint raised on appeal.
Same Transaction Contextual Evidence
Even if Appellant preserved error, his argument is without merit. Rule 404(b) provides
that evidence of other crimes, wrongs or acts is not admissible to prove the character of a person
in order to show action in conformity therewith. TEX.R.EVID. 404(b). Evidence of extraneous
acts may, however, be admissible for other purposes, provided that upon timely request by the
accused, “reasonable notice is given in advance of trial of intent to introduce in the State’s case-
in-chief such evidence other than that arising in the same transaction.” Id. Evidence of another
crime, wrong, or act may be admissible as same transaction contextual evidence when several
crimes are intermixed, blended with one another, or connected so that they form an indivisible
criminal transaction, and full proof by testimony of any one of them cannot be given without
showing the others. Devoe v. State, 354 S.W.3d 457, 469 (Tex.Crim.App. 2011). Same
transaction contextual evidence is admissible as an exception under Rule 404(b) only when the
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offense would make little or no sense without also bringing in that evidence, and only to the
extent it is necessary to the jury’s understanding of the offense. Devoe, 354 S.W.3d at 469. The
purpose of this type of evidence is to assist the factfinder in understanding the nature and context
of the charged offense. See Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App. 1993).
Events do not occur in a vacuum and the jury should be permitted to hear what occurred
immediately prior to and subsequent to the commission of that act so that it may realistically
evaluate the evidence. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000).
The trial court could have reasonably found that Appellant’s threat to kill J.H. and her
family if she called the police was intermixed with and indivisibly connected to the charged
offense given that the threat was made during the course of the aggravated sexual assault and it
explained J.H.’s resistance to her sister calling the police. In other words, the evidence put the
charged offense into context and was necessary to the jury’s understanding of the offense. The
trial court did not abuse its discretion by admitting the threat evidence. See Brown v. State, 657
S.W.2d 117, 119 (Tex.Crim.App. 1983)(holding that evidence defendant threatened to kill the
sexual-assault victim’s family was admissible to show reason for delayed outcry). Given that the
evidence was properly admitted as same transaction contextual evidence, the State was not
required to give notice under Rule 404(b). Even so, the record reflects that the State twice gave
Appellant written notice of its intent to use the evidence at trial. For all of these reasons, Issue
One is overruled.
STATE’S EXHIBIT 8
In Issue Two, Appellant argues that the trial court abused its discretion by admitting
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State’s Exhibit 8, the child victim’s underwear, without first establishing a proper chain of
custody. Appellant refers to both “chain of custody” and “authentication” in his brief and he
argues that the trial court should not have admitted the exhibit through the victim’s mother, G.H.,
before the State elicited testimony from the detective who collected the evidence and from the
DPS forensic examiner who performed the DNA analysis.
The victim’s mother, G.H., testified that J.H. was wearing a pink and black shirt and
black shorts on the day she was assaulted. G.H. removed her daughter’s clothing, including her
underwear, on the day of the assault. She later gave the clothing to a detective who put the items
of clothing in a bag and took them. G.H. identified the underwear, marked as State’s Exhibit 8,
as the same underwear J.H. had been wearing that day. She specifically testified that she had not
washed the underwear. The State offered the underwear into evidence and Appellant objected
that there had not been a “proper authentication.” The prosecutor responded that G.H. had
identified the evidence as the same underwear J.H. had been wearing that day. The trial court
stated, “For that purpose, they’re admitted.”
Detective Oscar Morales testified that he was assigned the case on June 15, 2011. That
same day, he went to the apartment where the victim lived and collected her clothing, including
the underwear. Detective Morales identified State’s Exhibit 8 as the same underwear he
collected on June 15, 2011 because he had written his initials, ID number, and the case number
on the evidence bag. He placed the evidence bag into “evidence” so that it could held pending
biological processing with DPS.
Christine Ceniceros, the DNA analyst, identified State’s Exhibit 8 as the same underwear
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she had tested because she had placed her case number, initials, and date on the band of the
underwear. Ceniceros testified that the underwear did not appear to have been altered or
changed since she had conducted the testing. The State then offered State’s Exhibit 8 into
evidence and Appellant’s counsel replied, “No objection.”
Preservation of Error
The first issue we must determine is whether Appellant preserved the claimed error. To
raise a complaint on appeal, a party is required to preserve error by making a timely and specific
objection. TEX.R.APP.P. 33.1(a); Lovill v. State, 319 S.W.3d 687, 691 (Tex.Crim.App. 2009). A
complaint raised on appeal is not preserved if the legal basis of the argument varies from the
objection made at trial. Lovill, 319 S.W.3d at 691-92. In other words, the complaint raised on
appeal must comport with the objection made at trial. Clark v. State, 365 S.W.3d 333, 339
(Tex.Crim.App. 2012).
When the State offered the underwear into evidence during G.H.’s testimony, Appellant
objected that there had not been a “proper authentication.” On appeal, he argues that the State
failed to establish a proper chain of custody. Having read the testimony of G.H. and the trial
court’s ruling, we conclude that Appellant’s objection that the State had not properly
authenticated State’s Exhibit 8 was sufficient to apprise the trial court and the State that he was
objecting to the chain of custody. Establishing chain of custody is part of identification and
authentication of certain types of physical evidence, or in other words, showing that the matter in
question is what it proponent claims. See Druery v. State, 225 S.W.3d 491, 503 (Tex.Crim.App.
2007)(observing that “although the evidentiary rules do not specifically address proper chain of
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custody, they do state that identification for admissibility purposes is satisfied if the evidence is
sufficient to support a finding that the matter in question is what its proponent claims.”).
Our inquiry into preservation is not complete because the State proceeded to re-offer
State’s Exhibit 8 after it had shown the chain of custody through subsequent witnesses. At that
point, Appellant stated he had “no objection” to the admission of the evidence. By doing so,
Appellant abandoned, and therefore, waived his earlier complaint regarding the admission of
State’s Exhibit 8. See Thomas v. State, 408 S.W.3d 877, 885-86 (Tex.Crim.App. 2013).
Chain of Custody
Even if Appellant preserved the issue raised on appeal, we conclude that the State
sufficiently established chain of custody. We review the trial court’s decision to admit or
exclude evidence under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736
(Tex.Crim.App. 2010). The trial court does not abuse its discretion unless its decision to admit
or exclude the evidence lies outside the zone of reasonable disagreement. See Martinez, 327
S.W.3d at 736.
Rule 901 provides that 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). Authentication can be
accomplished by testimony from a witness with knowledge that an item is what it is claimed to
be. TEX.R.EVID. 901(b)(1). The authentication requirement for admissibility is met once the
State has shown the beginning and the end of the chain of custody, particularly when the chain
ends at a laboratory. Martinez v. State, 186 S.W.3d 59, 62 (Tex.App.--Houston [1st Dist.] 2005,
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pet. ref’d). Absent proof of tampering, most problems with the chain of custody do not affect the
admissibility of evidence, but rather go to the weight of the evidence. Lagrone v. State, 942
S.W.2d 602, 617 (Tex.Crim.App. 1997); Medellin v. State, 617 S.W.2d 229, 232 (Tex.Crim.App.
1981). 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
tampering or alteration. See Garcia v. State, 537 S.W.2d 930, 934 (Tex.Crim.App. 1976).
The evidence at trial showed the beginning and end of the chain of custody. While
Appellant objected to the evidence when it was offered through G.H., who was the beginning of
the chain of custody, the State subsequently authenticated State’s Exhibit 8 and established the
continuation and end of the chain of the custody. Detective Morales identified the evidence bag
containing State’s Exhibit 8 by the markings he placed on the bag. Likewise, DNA analyst
Ceniceros identified State’s Exhibit 8 by the markings she placed on the band of the underwear.
The State re-offered the evidence through Ceniceros and Appellant did not renew his chain of
custody objection. The trial court did not abuse its discretion by determining that the State had
sufficiently authenticated State’s Exhibit 8. Issue Two is overruled. Having overruled both
issues presented on appeal, we affirm the judgment of the trial court.
April 22, 2015
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, J., and Barajas, C.J., (Senior Judge)
(Barajas, C.J., Senior Judge, sitting by assignment)
(Do Not Publish)
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