Opinion issued August 29, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-01112-CR
———————————
R.T. HARDGE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 180th District Court
Harris County, Texas
Trial Court Case No. 1223224
MEMORANDUM OPINION
A jury convicted R.T. Hardge of capital murder and the trial court assessed
his punishment at imprisonment for life without parole. 1 In four points of error,
appellant argues that (1) the evidence is insufficient to support his conviction, (2)
the trial court erred by denying his motion to suppress the DNA comparison
results, (3) the trial court erred by denying the motion to suppress statements
appellant made to law enforcement because the statements were the product of
police coercion, and (4) the trial court erred in admitting eight photographs that
were more prejudicial than probative.
We affirm.
Factual Background
On October 31, 2008, 78-year-old Luz Marti was found sexually assaulted
and murdered in a narrow alcove between the stairs and the wall of the Sacred
Heart Co-Cathedral in downtown Houston, Texas. Marti’s body was discovered
early that afternoon by Father Bob Brooks and Diantha Brennan, an administrative
assistant for the church, who called 9-1-1. According to Brennan, Marti’s face was
badly swollen and bruised, she was partially clothed, and her genital area was
exposed.
Brennan recognized Marti immediately because Marti was a parishioner who
had regularly attended Mass at the Co-Cathedral. Brennan testified that although
1
See TEX. PENAL CODE ANN. § 12.31(a) (West 2011), § 19.03(a)(2) (West Supp.
2012).
2
homeless, Marti felt safe at the church and considered the church her home. Marti
often slept on the top step of the stairs next to the alcove where her body was
found. Brennan, who regularly saw Marti at Mass and spoke with her on several
occasions, testified that although Marti was homeless and appeared to have a
mental illness, she was always neat and clean and she behaved appropriately and
never gave Brennan any cause for concern. Brennan testified that Marti always
wore the same clothing (i.e., red and white checked Capri pants, white tennis
shoes, a red cotton short-sleeved shirt, and a red sweater) and always carried the
same belongings with her (i.e., a blue plastic rosary, several plastic crucifixes, two
or three scapulars,2 a Bible, a bilingual missal, a prayer book hymnal, and a red
and white plastic ankle bracelet).
Sheridan Langford, a crime scene investigator with the Houston Police
Department, was dispatched to the church that afternoon to photograph and
videotape the crime scene. Langford testified that upon her arrival she observed
Marti, a partially clothed elderly deceased woman, lying in a small alcove between
the church’s east wall and a staircase leading to a door into the cathedral. Neither
the alcove nor the body was visible from the street, which was approximately 140
feet away.
2
A scapular is a pair of small cloth squares joined by shoulder straps and worn
under the clothing on the breast and back as a sacramental.
3
According to Langford, Marti was wearing a maroon sweater, a white
Adidas tennis shoe on her left foot, and a beaded ankle bracelet on her left ankle.
Marti’s pants and panties were missing and a blood stained, blue-green towel was
partially covering her body. Langford testified that although she did not know how
long Marti’s body had been in the alcove, signs of insect activity in one of Marti’s
nostrils indicated that Marti had been deceased for several hours.
Langford also found a green rosary and a cross next to Marti’s left knee, a
second tennis shoe near Marti’s right knee, and a drawstring mesh bag with Marti’s
personal belongings next to Marti’s head. Marti’s state-issued identification card
was inside the mesh bag, along with a Bible, a bilingual missal, and a prayer book
hymnal that were wrapped up in an American flag bandana. A smaller blue bag
with various toiletry items and a bus pass belonging to Marti was also found inside
the mesh bag.
Trace evidence analyst Diana Wolfshohl, forensic investigator Vanessa
Trevino, and HPD Investigator Arnauld Semmelrock were also dispatched to the
scene later that afternoon. Wolfshohl, who documented the physical evidence
found on or near Marti in the alcove, noticed that Marti was wearing a rosary and a
scapular around her neck. Trevino documented the severity of Marti’s injuries,
including contusions to her face, knees and thighs, hemorrhaging in her eyes, and
the bloody tears to her vaginal area. Based on body temperature, Trevino
4
estimated that she had been deceased for twelve to twenty-four hours.3
Semmelrock, one of the homicide investigators assigned to the case, testified that
the blood and evidence collected at the scene was contained in the confined space
where Marti was found, indicating that she was not moved there after she was
injured and that the entire crime took place in that area.
After Marti’s corpse was removed from the crime scene, Langford obtained
DNA samples from the blood stains on the north and east walls of the alcove. She
also observed a sizeable bloodstain on the brick pavers underneath where Marti’s
groin had been. While performing the autopsy, Dr. Roger Mitchell collected DNA
samples from underneath Marti’s fingernails, and semen from her vagina and
rectum. This evidence resulted in a DNA profile which was entered into the
national Combined DNA Index System (CODIS).
On January 5, 2009, Semmelrock received information that the suspect DNA
profile matched appellant, who was arrested a few days later at a McDonald’s
about one block from the crime scene and brought to the police station for
questioning. Appellant was calm and able to communicate, and he was offered
food, water. and access to the bathroom. Although appellant waived his statutory
rights and spoke with investigators, he denied being at the crime scene, committing
3
Trevino testified that she took Marti’s body temperature at 7:15 p.m. on October
31, 2009. Based upon Trevino’s estimate, Marti died sometime between 7 p.m. on
October 30, 2009 and 7 a.m. the next morning.
5
the crime, or knowing Marti. Appellant also adamantly denied frequenting
downtown or associating with people who lived there. After investigators showed
appellant a photograph of Marti and told him that somebody had identified him as
being with her, appellant confidently stated that “ain’t nobody in this world gonna
say that I was with that woman right there, in this world. Nah.” Investigators also
asked appellant for a sample of his DNA in order to verify his claim that he did not
assault Marti. When appellant refused their request and told them several times
that they already had a sample of his DNA on file, investigators obtained a search
warrant authorizing them to seize a sample.
Semmelrock also testified that in mid-February 2009 he attempted to search
appellant’s apartment, but when he arrived at the apartment complex, he
discovered that the management had just evicted appellant and discarded his
belongings in a dumpster. Semmelrock testified that he retrieved a pair of
women’s red panties from the dumpster and submitted them for DNA testing.
The sample of appellant’s DNA that investigators collected from appellant
was compared to the DNA evidence recovered from the scene by DNA analyst
Robin Guidry. 4 Guidry testified that appellant’s DNA could not be excluded from
the vaginal and rectal swabs, the east and north wall swabs, from the blue rosary
4
Serologist Karen Ginco tested the evidence taken from the crime scene and
Marti’s body, and found blood and semen on the following items: the vaginal
swab, the rectal swab, the north wall swab, the east wall swab, the blue rosary, the
white-laced scapular, the cross necklace, and the blue towel.
6
beads and scapular worn around Marti’s neck and her beaded ankle bracelet, and
from underneath the fingernails of Marti’s left hand. Although semen was found
on the red panties, there was not enough DNA to run a comparison. Guidry
testified that the blue rosary beads that Marti was wearing around her neck had a
mixture of DNA from Marti, appellant, and another unknown individual. She also
testified that DNA analysis cannot determine when DNA was deposited on a tested
substance, and that the DNA from the third contributor could have been from the
person who originally sold the rosary to Marti.
Dr. Mitchell, the medical examiner who performed Marti’s autopsy,
concluded that Marti was sexually assaulted at or near the time of her death, and he
ruled her death a homicide. According to Dr. Mitchell, Marti’s death was caused
by multiple acts of blunt force trauma, including a blow to her face severe enough
to fracture her nose and cause her brain to bleed, and asphyxiation due to
compression of her neck. Dr. Mitchell also testified that the strangulation marks
on Marti’s neck were in a beaded pattern consistent with the blue rosary that she
was wearing when her body was discovered.
Dr. Mitchell testified that Marti’s vagina was torn almost to her rectum. He
also found a bruise on her rectum and another four-inch laceration or tearing of the
wall of the vagina on the left side going in towards and reaching the cervix. Dr.
Mitchell testified that these injuries were consistent with penile rape. Conceding
7
that it was not possible for his examination to determine if the person who
murdered Marti also sexually assaulted her, he testified that although it was
possible that Marti’s sexual assault and murder happened at different times, it was
not probable. Because the injuries from Marti’s sexual assault showed no
evidence of healing and were consistent with the bruises to her face, neck, and
body, Dr. Mitchell concluded that Marti was beaten, strangled, and sexually
assaulted at or near the time of her death.
Procedural Background
A. Motion to Suppress Evidence
Appellant filed a motion to suppress his DNA sample in CODIS in which he
argued that his DNA sample was obtained by law enforcement during the
investigation of a sexual assault charge against him, 5 that the charge was
subsequently dismissed and that the sample should have been destroyed thereafter
pursuant to Government Code section 411.1471(e).6 According to appellant, the
inclusion of his DNA sample in CODIS after dismissal of the prior case violated
5
Appellant’s motion to suppress states that the DNA sample “should have been
destroyed after the dismissal of his 1990 rape case.” This is most likely a
typographical error because there is no reference to a 1990 sexual assault charge in
the State’s notice of its intention to use evidence of prior convictions and
extraneous offenses or anywhere else in the record.
6
TEX. GOV’T CODE ANN. § 411.1471(a)(1)-(2), (e) (West 2012) (requiring
collection of DNA specimen from defendant after indictment, or waiver of
indictment, for certain offenses and requiring DNA specimen and record of its
receipt be immediately destroyed if defendant acquitted or case against defendant
dismissed).
8
his right to privacy and his right to be free from unlawful searches and seizures
pursuant to the Fourth Amendment of the U.S. Constitution and article 1, section 9
of the Texas Constitution. Appellant argued that Code of Criminal Procedure
article 38.23 required the suppression of this illegally obtained DNA evidence. See
TEX. CODE CRIM. PROC. art. 38.23 (West 2005) (requiring exclusion of evidence
that was unlawfully obtained).
At the beginning of the pre-trial suppression hearing, the State discussed
appellant’s lengthy criminal history, which included, inter alia, convictions for
burglary (1983), burglary of a habitation (1984), burglary of a building (1987 and
1988), and auto theft (1987) in which appellant was sentenced to TDCJ, and the
State acknowledged that it was “unclear about in which of these cases [appellant]
submitted his bucal swab.”7 Nevertheless, the State represented that the DNA
7
The State’s notice of its intention to use evidence of prior convictions and
extraneous offenses also indicates that appellant was convicted of the offense of
unauthorized use of a motor vehicle in March 2000 and sentenced to twelve years
in TDCJ and that appellant was on community supervision until 2011. See TEX.
CODE CRIM. PROC. ANN. art. 42.12, § 11(j) (West Supp. 2012) (“A judge granting
community supervision to a defendant convicted of a felony shall require that the
defendant, as a condition of community supervision, provide a DNA sample under
Subchapter G, Chapter 411, Government Code, for the purpose of creating a DNA
record of the defendant, unless the defendant has already submitted the required
sample under other state law.”)
Since at least September 1, 2005, Government Code section 411.148 has required
that all prison inmates provide blood samples or other specimens to be included in
the CODIS DNA database. TEX. GOV’T CODE ANN. § 411.148(a)(1)(B), (b) (West
2012). Although appellant was sentenced to twelve years in TDCJ in 2000, the
record does not indicate whether appellant actually served any of this sentence.
9
sample was taken lawfully and that it was appellant’s burden to prove otherwise.
The State further argued that Government Code section 411.1471(e) was
inapplicable because this section—which was enacted after appellant’s arrest for
the 1999 sexual assault case—only applies to DNA samples taken after an arrest
that occurred on or after 2002.8
Appellant responded that his DNA sample in CODIS was apparently taken
from him in connection with a sexual assault case dismissed in 1999. Appellant,
however, did not argue at the hearing that his DNA sample should have been
removed from CODIS after the sexual assault case was dismissed in 1999 pursuant
to Government Code section 411.1471(e), 9 nor did he argue that section 411.1471
should be applied retroactively to include his DNA sample. Rather, appellant
argued that in 1999, the State was only entitled to collect DNA samples from
inmates if a court ordered the inmate to give a sample or if the inmate was serving
a sentence for sexual assault. Appellant further contended that because his
investigator was unable to find an order “showing that he was ever ordered to give
8
The State also argued that appellant was collaterally estopped from relitigating this
issue because he had filed a federal lawsuit to remove his DNA sample from
CODIS and the federal district court dismissed his complaint for failure to state a
claim pursuant to 28 U.S.C. § 1915. In that lawsuit, appellant alleged that his
DNA sample was unlawfully included in CODIS, in violation of state law and the
Fourth Amendment, after his 1983 conviction for burglary of a habitation was
overturned and he was acquitted.
9
During the hearing, appellant’s counsel acknowledged that the dismissal of the
sexual assault case against appellant in 1999 “was of course before the 2002
statute.”
10
a DNA sample,” “we can only assume that it was taken as a suspect.” Appellant
argued that because he was a “mere suspect” in the 1999 sexual assault case and
never convicted of that crime, the inclusion of the DNA sample acquired from him
during that investigation constituted an invasion of his right to privacy under the
Fourth Amendment.
Appellant offered no evidence to show that the DNA sample was collected
in connection with the dismissed sexual assault case, as opposed to other of his
criminal convictions.
B. Motion to Suppress Statements
Appellant also filed a separate motion to suppress statements he made to law
enforcement during his videotaped interview. In his one-and-a-half page written
motion, appellant made several general allegations including, inter alia, that any
statements he made to police were “involuntary and were coerced and enticed” and
that the statements were “tainted by [his] illegal and unlawful detention and
arrest.” Appellant argued that the admission of these statements violated various
provisions of the U.S. Constitution (i.e., Fourth, Fifth, Sixth, and Fourteenth
Amendments), the Texas Constitution (i.e., Article I, sections 9 and 10), and three
articles of the Code of Criminal Procedure (i.e., art. 1.05, 38.22, and 38.23). This
motion never cites analogous case law or presents meaningful analysis applying
these legal authorities to the specific facts of his case. At the pre-trial hearing on
11
his motion, the State introduced a copy of his videotaped interview and called one
of the HPD investigators present during the interrogation, Semmelrock, who
testified that appellant became a suspect in Marti’s murder when DNA taken from
the crime scene matched appellant’s DNA registered in the national CODlS
database. Semmelrock obtained an arrest warrant based on the DNA match and
after appellant was arrested on January 9, 2009, he and his partner interviewed
appellant after reading him his rights and after giving him crackers and drinks.
Appellant verbally acknowledged the rights read to him and voluntarily waived
these rights so he could give his statement. On cross-examination, Semmelrock
testified that he did not know how CODIS obtained appellant’s DNA information.
Sufficiency of the Evidence
In his first point of error, appellant challenges the sufficiency of the evidence
supporting his capital murder conviction. Appellant does not, however, argue that
the evidence is insufficient to show that he sexually assaulted Marti. Rather,
appellant argues that the evidence is insufficient to show that he murdered Marti or
that the murder occurred during the course of the aggravated sexual assault.
A. Standard of Review
Appellant acknowledges on appeal that there is evidence that tends to show
that he murdered and sexually assaulted Marti, but he argues that the facts which
tend to show that he did not commit both the murder and sexual assault
12
overwhelmingly outweigh the evidence to the contrary. Challenges to the legal
and factual sufficiency of the evidence are reviewed by this Court under the
standard enunciated in Jackson v. Virginia, 443 U.S. 307, 318–20, 99 S.Ct. 2781,
2788–89 (1979). See Ervin v. State, 331 S.W.3d 49, 52–56 (Tex. App.—Houston
[1st Dist.] 2010, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 894–95, 912–
13 (Tex. Crim. App. 2010)).
Under the Jackson standard, evidence is insufficient to support a conviction
if, considering all the record evidence in the light most favorable to the verdict, no
rational factfinder could have found that each essential element of the charged
offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 317–19,
99 S.Ct. at 2788–89; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).
Evidence is insufficient under this standard in four circumstances: (1) the record
contains no evidence probative of an element of the offense; (2) the record contains
a mere “modicum” of evidence probative of an element of the offense; (3) the
evidence conclusively establishes a reasonable doubt; and (4) the acts alleged do
not constitute the criminal offense charged. See Jackson, 443 U.S. at 314, 318
n.11, 320, 99 S.Ct. at 2786, 2789 & n.11; Laster, 275 S.W.3d at 518; Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
The Jackson standard imbues to the factfinder the responsibility to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable
13
inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99
S.Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); see
also Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008) (stating jury is
sole judge of credibility of witnesses and weight to give their testimony). An
appellate court presumes that the factfinder resolved any conflicts in the evidence
in favor of the verdict and defers to that resolution, provided that the resolution is
rational. See Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; see also Clayton, 235
S.W.3d at 778 (reviewing court must “presume that the factfinder resolved the
conflicts in favor of the prosecution and therefore defer to that determination”).
Moreover, in our review of the record, direct and circumstantial evidence are
treated equally; circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be
sufficient to establish guilt. Clayton, 235 S.W.3d at 778. In determining the
sufficiency of the evidence, a reviewing court examines “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.” Id. (quoting
Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)). Finally, the
“cumulative force” of all the circumstantial evidence can be sufficient for a jury to
find the accused guilty beyond a reasonable doubt, even if every fact does not
14
“point directly and independently to the guilt of the accused.” Powell v. State, 194
S.W.3d 503, 507 (Tex. Crim. App. 2006).
B. Applicable Law
A person commits capital murder if he intentionally causes the death of an
individual in the course of committing or attempting to commit an aggravated
sexual assault. See TEX. PENAL CODE ANN. §§ 19.02(b)(1), 19.03(a)(2) (West
Supp. 2011). A person commits aggravated sexual assault if he intentionally or
knowingly “causes the penetration of the anus or sexual organ of another person by
any means, without that person’s consent . . .” and “causes serious bodily injury or
attempts to cause the death of the victim . . . in the course of the same criminal
episode.” TEX. PENAL CODE ANN. §§ 22.021(a)(1)(A)(i), (2)(A)(i) (West 2011).
The Court of Criminal Appeals has defined “in the course of committing” an
offense listed in section 19.03(a)(2) as conduct occurring “in an attempt to commit,
during the commission, or in the immediate flight after the attempt or commission
of the offense.” Garrett v. State, 851 S.W.2d 853, 856 (Tex. Crim. App. 1993).
C. Analysis
The record reflects that Marti was found in a location not visible from the
street. Her body, swollen and bruised, was nude from the waist down and her
genital area was exposed. Investigators at the scene documented the severity of
Marti’s injuries, including contusions to her face, knees and thighs, hemorrhaging
15
in her eyes, and the bloody tears to her vaginal area. They also observed blood on
the walls of the alcove and a sizeable bloodstain underneath where Marti’s groin
had been after her body was removed. All the evidence was confined to the small
alcove where Marti’s body was found, indicating that the entire crime took place in
that area and she was not moved thereafter. With the notable exception of her
pants and panties, all of Marti’s personal items were found undisturbed near her
body.
Based on comparisons of appellant’s DNA sample with the DNA evidence
recovered from the scene, DNA analyst Guidry testified that appellant could not be
excluded from the semen found on and in Marti’s corpse, the bloodstains taken
from the east and north wall of the church, and the blue rosary used to strangle her.
This was corroborated by Dr. Mitchell’s testimony that the marks created by her
strangulation matched the beaded blue rosary Marti wore around her neck.
Appellant nonetheless argues that the facts that tend to show that he did not
commit both the murder and sexual assault overwhelmingly outweigh the evidence
that he did. In particular, appellant relies upon (1) Guidry’s testimony that it is not
possible to determine when DNA was deposited on an item, (2) Guidry’s testimony
that some of the swabs were packaged together, which, appellant contends, means
that there could have been cross-contamination, (3) Dr. Mitchell’s testimony that
he did not know if the person who sexually assaulted Marti was the same person
16
who killed her, and (4) Dr. Mitchell’s testimony that it was possible that Marti’s
sexual assault and murder happened at different times.
Although Dr. Mitchell testified that he did not know if the person who
sexually assaulted Marti was the same person who killed her and that it was
possible that Marti’s murder happened at a different time than the sexual assault,
Mitchell also testified that the injuries Marti received from being sexually
assaulted (e.g., tears and trauma to her vagina and rectum) occurred at or near the
time of her blunt force trauma and asphyxiation injuries. He further testified that
because the injuries from Marti’s sexual assault showed no evidence of healing and
were consistent with the bruises to her face, neck, and body, he concluded that she
was beaten, strangled, and sexually assaulted at or near the time of her death. As
the sole factfinder and judge of the credibility of the witnesses and weight given to
their testimony, the jury was within its province to resolve any conflicts in the
testimony and to believe Dr. Mitchell’s testimony that the murder occurred at or
near the time of the aggravated sexual assault. See Jackson, 443 U.S. at 319, 99
S.Ct. at 2789; Clayton, 235 S.W.3d at 778; Brown, 270 S.W.3d at 568.
Second, Guidry testified that the DNA analysis linked appellant to both the
semen found inside Marti’s vagina and rectum and the DNA on the rosary used to
strangle her. Although she acknowledged that DNA analysis could not determine
precisely when appellant deposited the DNA, viewed in the light most favorable to
17
the verdict, it was reasonable for the jury to infer from both Guidry’s and Dr.
Mitchell’s testimony that the murder occurred at or near the time of the aggravated
sexual assault and that appellant left his DNA at the crime scene at or near the time
he murdered Marti. See Clayton, 235 S.W.3d at 778.
Third, contrary to appellant’s assertion, Guidry’s acknowledgement that
some swabs were packaged together does not suggest the possibility of cross-
contamination. Guidry, who testified at length regarding the safeguards and
controls followed by her and the crime laboratory, stated that “[s]wabs from the
same item will be packaged together, because they are the same item. We treat
them as the same item.” Guidry further explained that “all the vaginal swabs are
received packaged together, all of the rectal swabs were received packaged
together. The necklace swabs that were from different necklaces would have been
packaged separately.”
In sum, the evidence presented at trial supported the jury’s verdict that
appellant murdered Marti during the course of committing aggravated sexual
assault, where the medical examiner testified that the murder occurred at or near
the time of the aggravated sexual assault, and appellant’s DNA linked him to the
sexual assault and the rosary used to strangle Marti. See Powell, 194 S.W.3d at
507 (stating it is not necessary that every fact point directly and independently to
defendant’s guilt if conclusion is warranted by their combined and cumulative
18
force). When the evidence is viewed in a light most favorable to the verdict, the
jury reasonably could have inferred that appellant murdered Marti during the
course of committing aggravated sexual assault, and found the elements of capital
murder beyond a reasonable doubt. Jackson, 443 U.S. at 319; see also Muniz v.
State, 851 S.W.2d 238, 249 (Tex. Crim. App. 1993) (finding evidence sufficient to
support defendant’s conviction for capital murder where factor that made sexual
assault aggravated caused victim’s death).
We overrule appellant’s first point of error.
Motions to Suppress—Evidence of DNA Comparison and Statements to Law
Enforcement
In his second and third points of error, appellant contends that the trial court
erred by denying his motions to suppress his DNA sample in CODIS and
statements he made to law enforcement during a videotaped interview.
A. Preservation of Error
A motion to suppress is a specialized objection to the admission of evidence.
Rothstein v. State, 267 S.W.3d 366, 373 (Tex. App.—Houston [14th Dist.] 2008,
pet. ref’d). “[A] complaint is not preserved for appeal unless it was made to the
trial court ‘by a timely request, objection or motion’ that ‘stated the grounds for the
ruling that the complaining party sought from the trial court with sufficient
specificity to make the trial court aware of the complaint, unless the specific
19
grounds were apparent from the context.’” Resendez v. State, 306 S.W.3d 308, 312
(Tex. Crim. App. 2009) (quoting TEX. R. APP. P. 33.1); see also TEX. R. EVID. 103.
To preserve error, a party “must be specific enough so as to ‘let the trial
[court] know what he wants, why he thinks himself entitled to it, and do so clearly
enough for the judge to understand him at a time when the trial court is in a proper
position to do something about it.’” Resendez, 306 S.W.3d at 313 (quoting
Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). A party fails to
preserve error when the contention urged on appeal does not comport with the
specific complaint made in the trial court. See Rothstein, 267 S.W.3d at 373.
We consider the context of the complaint to determine if the party preserved
error. See Resendez, 306 S.W.3d at 313. Accordingly, we review appellant’s
motion to suppress and the suppression hearing to determine if the complaint was
apparent from the context. See id. at 314–16; Rothstein, 267 S.W.3d at 374–75 &
n.5. If the correct ground for exclusion was obvious to the trial court and opposing
counsel, waiver will not result from a general or imprecise objection. Zillender v.
State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). However, if the context
shows that a party failed to effectively communicate his argument, then the error is
deemed waived on appeal. Lankston, 827 S.W.2d at 909.
“Global statements” in a written motion to suppress are not sufficient to
preserve arguments for appeal. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim.
20
App. 2005) (citing TEX. R. APP. P. 33.1). Therefore, a party waives error when (1)
a suppression motion makes global arguments citing little more than constitutional
and statutory provisions and (2) the party fails to argue any specific grounds for
suppressing evidence at the suppression hearing. See Swain, 181 S.W.3d at 365.
B. Standard of Review
The appropriate standard for reviewing a trial court’s ruling on a motion to
suppress evidence is bifurcated, giving almost total deference to a trial court’s
determination of historical facts and reviewing de novo the court’s application of
the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). We must
“afford the same amount of deference to [a] trial courts’ rulings on application of
law to fact questions, also known as mixed questions of law and fact, if the
resolution of those ultimate questions turns on an evaluation of credibility and
demeanor.” Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (internal
quotations omitted). We conduct a de novo review when the resolution of mixed
questions of law and fact do not turn on an evaluation of credibility and demeanor.
See id.
In determining whether a trial court’s decision is supported by the record, we
generally consider only the evidence adduced at a suppression hearing unless the
parties consensually re-litigate the issue at trial, in which case we also consider
relevant trial testimony. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App.
21
1996). We give almost total deference to a trial court’s determination of historical
facts, especially if those determinations turn on witness credibility or demeanor,
and review de novo the trial court’s application of the law to facts not based on an
evaluation of credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex.
Crim. App. 2008). At a suppression hearing, a trial court is the sole and exclusive
trier of fact and judge of the witnesses’ credibility. Maxwell, 73 S.W.3d at 281.
Accordingly, a trial court may choose to believe or to disbelieve all or any part of a
witness’s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
C. Evidence of DNA Comparison
In his second point of error, appellant argues that his DNA sample was
obtained by law enforcement during the investigation of a sexual assault charge
against him, and that the sample and profile should have been destroyed after the
charge was dismissed in 1999 pursuant to Government Code section 411.1471.
Appellant further contends that because his DNA profile was unlawfully in CODIS
pursuant to Government Code section 411.1471(e), the trial court erred by denying
his motion to suppress the DNA comparison results derived from his CODIS
profile pursuant to Code of Criminal Procedure 38.23. See TEX. CODE CRIM. P.
38.23 (requiring exclusion of evidence that was unlawfully obtained).
Section 411.1471(b) sets out that after a defendant has been indicted or has
waived indictment for one of several felony offenses, including sexual assault, the
22
court in which the case is pending shall require the defendant to provide “one or
more specimens for the purpose of creating a DNA record.” TEX. GOV’T CODE
ANN. § 411.1471(b) (West 2012). Section 411.1471(e) further provides that if that
defendant is later acquitted or the case against him is dismissed, the “the court shall
order the law enforcement agency taking the specimen to immediately destroy the
record of the collection of the specimen and require the department to destroy the
specimen and the record of its receipt.” Id. at § 411.1471(e) (West 2012). This
section, which went into effect on September 1, 2001, only applies “to a defendant
arrested on or after February 1, 2002.” Act of June 17, 2001, 77th Leg., ch. 1490
§§ 2, 9 (amended 2007, 2011) (current version at TEX. GOV’T CODE ANN.
§ 411.1471).
A defendant who moves for suppression under article 38.23 due to the
violation of a statute has the burden of producing evidence of a statutory violation.
State v. Robinson, 334 S.W.3d 776, 778–79 (Tex. Crim. App. 2011) (citing Pham
v. State, 175 S.W.3d 767, 772 (Tex. Crim. App. 2005)). Only when this burden is
met does the State bear a burden to prove compliance. Robinson, 334 S.W.3d at
778–79. This procedure is substantially similar to that required when there is a
motion to suppress under the Fourth Amendment, but it is a separate inquiry based
on separate grounds. Id.
23
First, although appellant raised two bases for suppression of the DNA profile
in his written motion (i.e., Government Code section 411.1471/Code of Criminal
Procedure article 38.23 and the right to be free from unlawful searches and
seizures pursuant to the Fourth Amendment of the U.S. Constitution and article 1,
section 9 of the Texas Constitution), he only argued at the suppression hearing that
the inclusion of his DNA profile violated the Fourth Amendment. Specifically,
appellant argued that because he was a “mere suspect” in the 1999 sexual assault
case and he was never convicted of that crime, the inclusion of the DNA sample
acquired from him during the course of that investigation constituted an invasion
of his rights under the Fourth Amendment.10 Appellant did not argue at the
hearing that his DNA should have been suppressed under Code of Criminal
Procedure article 38.23 because it was included in CODIS in violation of
Government Code section 411.1471. In fact, appellant seemingly abandoned this
argument when he acknowledged during the hearing that Government Code
section 411.1471 was not enacted until after the sexual assault case was dismissed.
See Rothstein, 267 S.W.3d at 373 (stating party fails to preserve error when
contention urged on appeal does not comport with specific complaint made in trial
court).
10
Appellant does not argue on appeal that the inclusion of his DNA information in
CODIS is a violation of his Fourth Amendment rights. As such, he has not
preserved this issue for our review. See TEX. R. APP. P. 38.1(i).
24
Second, even if appellant preserved this issue for our review, the trial court
did not abuse its discretion when it denied appellant’s motion to suppress based on
Code of Criminal Procedure article 38.23 and Government Code section 411.1471
because appellant did not produce evidence of a statutory violation. Robinson, 334
S.W.3d at 778–79 (stating defendant who moves for suppression under article
38.23 due to violation of statute has burden of producing evidence of statutory
violation). Although appellant argued at the suppression hearing and on appeal
that his DNA sample in CODIS was apparently taken from him in connection with
the sexual assault case that was dismissed in 1999, he offered no evidence as to
when his DNA sample was actually acquired by law enforcement. Id. The record
reflects that among appellant’s history of arrests and convictions was the offense of
unauthorized use of a motor vehicle in March 2000 for which he was sentenced to
twelve years in TDCJ and that appellant was on community supervision until 2011.
See generally TEX. GOV’T CODE ANN. § 411.148(a)(1)(B), (b) (section enacted in
2005 requiring all prison inmates to provide blood samples or other specimens to
be included in CODIS DNA database); TEX. CODE CRIM. PROC. ANN. art. 42.12,
§ 11(j) (West Supp. 2012) (“A judge granting community supervision to a
defendant convicted of a felony shall require that the defendant, as a condition of
community supervision, provide a DNA sample under Subchapter G, Chapter 411,
Government Code, for the purpose of creating a DNA record of the defendant,
25
unless the defendant has already submitted the required sample under other state
law.”). If appellant’s DNA was acquired during either of these interactions (or if
he voluntarily gave a sample in order to be excluded as a suspect in another crime),
Government Code section 411.1471(e) would not require the destruction of the
DNA specimen and profile. Moreover, even if appellant established that his DNA
was acquired in connection with the 1999 sexual assault case, appellant did not
establish that Government Code section 411.1471 required the removal of his
DNA from CODIS, particularly in light of appellant’s acknowledgement that
Government Code section 411.1471 was not enacted until after the sexual assault
case was dismissed in 1999. (“This was of course before the 2002 statute.”)
Thus, appellant failed to produce evidence of a statutory violation. See Robinson,
334 S.W.3d at 778–79.
Although appellant argues on appeal that Government Code section
411.1471 applies to DNA specimens taken before the section’s effective date of
September 1, 2001, and that the application of this section retroactively does not
violate the prohibition against ex post facto laws, appellant did not raise this
argument in his written motion to suppress or during the suppression hearing.
Accordingly, even were it necessary to reach this issue, appellant’s argument that
Government Code section 411.1471 should be applied retroactively to bar the State
26
from using the DNA comparison results derived from his CODIS profile has not
been preserved for our review.
Appellant further argues that the trial court’s denial of his motion to
suppress was error because the State presented no evidence that his DNA sample
was properly taken “in contravention of a state statute which requires a court order
for the taking.” However, because appellant moved for suppression under article
38.23 due to the violation of a statute, he had the burden of producing evidence of
a statutory violation. Robinson, 334 S.W.3d at 778–79. Since Appellant did not
meet his burden, the burden never shifted to the State to prove compliance. Id.
We overrule appellant’s second point of error.
D. Statements to Law Enforcement
In his third point of error, appellant contends that the trial court erred in
denying his motion to suppress statements he made to law enforcement during a
videotaped interview because the statements were “rendered involuntary from [the
officers’] coercion.”
Appellant does not articulate a factual basis for his coercion claim or
identify any coercive tactics allegedly employed by the officers, either in his
appellate brief or at the trial court level. In his one-and-a-half-page motion to
suppress, appellant makes several generalized allegations including, inter alia, that
any statements he made to police were “involuntary and were coerced and enticed”
27
and that the statements were “tainted by [his] illegal and unlawful detention and
arrest.” At the suppression hearing, appellant did not argue that his statements
were involuntary or coerced, nor did he attempt to elicit testimony supporting this
allegation. Instead, appellant focused his attention on proving another ground for
suppression (i.e., that the statements were the fruit of his illegal and unlawful
detention and arrest and should be suppressed under Code of Criminal Procedure
article 38.23). See TEX. CODE CRIM. P. art. 38.23 (requiring exclusion of evidence
that was unlawfully obtained). In fact, appellant devoted his entire cross-
examination of Officer Semmelrock—one of the officers who conducted the
interrogation and the only witness to testify at the hearing—to the facts underlying
the identification of appellant as a suspect (i.e., the discovery that appellant’s DNA
profile in CODIS matched DNA taken from the crime scene).
We note that the section of appellant’s brief that addresses his third point of
error contains no citations to the record or any meaningful analysis of the cited
legal authorities to the specific facts of his case. As such, appellant’s third point of
error was inadequately briefed. See TEX. R. APP. P. 38.1(i). However, even if
appellant had adequately briefed this point of error, he would still not be entitled to
relief. After reviewing appellant’s written motion to suppress and the transcript of
the suppression hearing, we hold that appellant failed to preserve for our review his
argument that his statements to law enforcement were coerced, and therefore
28
involuntary, and should have been excluded under Code of Criminal Procedure
article 38.23. See Swain, 181 S.W.3d at 365 (holding party waives error when
suppression motion makes global arguments citing little more than constitutional
and statutory provisions and party fails to argue specific ground for suppressing
evidence at suppression hearing); Lugo v. State, 299 S.W.3d 445, 450 (Tex.
App.—Fort Worth 2009, pet. ref’d) (“[T]he complaint made on appeal must
comport with the complaint made in the trial court or the error is forfeited.”).
We overrule appellant’s third point of error.
E. Admission of Crime Scene Photographs
In his fourth point of error, appellant contends that the trial court erred by
admitting eight crime scene photographs of Marti (State’s Exhibits 20 and 59–65)
in violation of Rule of Evidence 403. According to appellant, all eight
photographs were gruesome in nature and should have been excluded on the basis
that they were more prejudicial than probative. TEX. R. EVID. 403.
1. Standard of Review and Applicable Law
Rule of Evidence 403 provides that relevant evidence “may be excluded if
its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, or needless presentation of cumulative evidence.” TEX. R. EVID. 403. We
review the trial court’s ruling on admissibility of the photographs under an abuse
29
of discretion standard and will not reverse the trial court’s ruling unless it falls
outside the zone of reasonable disagreement. See Young v. State, 283 S.W.3d 854,
874 (Tex. Crim. App. 2009); see also Sonnier v. State, 913 S.W.2d 511, 518 (Tex.
Crim. App. 1995).
When determining whether the trial court erred in admitting relevant
photographs into evidence, our review is limited to determining whether the
probative value of the photos is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay or needless presentation of cumulative evidence. Young, 283 S.W.3d
at 874; TEX. R. EVID. 403.
Our analysis under Rule 403 includes, but is not limited to, the following
factors: (1) the probative value of the evidence, (2) the potential to impress the jury
in some irrational yet indelible way, (3) the time needed to develop the evidence,
and (4) the State’s need for the evidence. Hernandez v. State, 390 S.W.3d 310,
324 (Tex. Crim. App. 2012); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim.
App. 2006). In determining whether the probative value of a photograph is
substantially outweighed by the danger of unfair prejudice, we also consider “the
number of exhibits offered, their gruesomeness, their detail, their size, whether
they are in color or black-and-white, whether they are close-up, whether the body
depicted is clothed or naked, the availability of other means of proof, and other
30
circumstances unique to the individual case.” Williams v. State, 301 S.W.3d 675,
690 (Tex. Crim. App. 2009).
2. Analysis
The eight photographs admitted were in conjunction with the testimony of
forensic investigator Vanessa Trevino and HPD Officer Sheridan Langford, a
crime scene investigator who, together with Trevino, documented the crime scene
and the extent of Marti’s injuries. Although the photographs included in the
appellate record are black and white, it appears from the reporter’s record that
color photos were admitted into evidence and that these were displayed in the
courtroom on an overhead projector.
State’s Exhibit 20 shows Marti’s partially-clad body lying on the floor of the
narrow alcove, wearing a sweater, one tennis shoe, and an ankle bracelet. Officer
Langford used Exhibit 20 to explain the position of Marti’s body when she was
found and other objects found in the alcove, including a second tennis shoe, rosary
beads, a necklace with a crucifix, a drawstring mesh bag that contained Marti’s
belongings, and a blue-green towel. Brennan, the administrative assistant who
discovered Marti’s body and called 9-1-1, also used Exhibit 20 to explain to the
jury the location and condition of Marti’s body when she was found.
State’s Exhibits 59–65 are close-up photographs of Marti’s body that show
what forensic investigator Trevino observed at the crime scene. In particular,
31
Exhibit 59 is a close-up of Marti’s face and neck that shows contusions on the right
side of her face and on her right eye, as well as the rosary that was used to strangle
her. Exhibit 60 is a close-up photograph of Marti’s eye and eyelid that shows
petechial hemorrhaging which, according to Trevino, indicates “some type of
obstruction or trauma to the airway or blunt force impact.” Exhibits 61 and 62 are
close-up photographs of the front of Marti’s bare legs and thighs that show
contusions and abrasions on both of her knees, blood on her upper thigh, and
multiple contusions on her upper thigh. Exhibit 63 is a close-up photograph of
Marti’s genital area that shows blood on the upper inside of the thigh as well as on
her buttocks. Exhibit 64 is a photograph that was taken after Marti’s body was
removed from the alcove and placed on a body bag. The photograph shows dirt on
Marti’s bare lower back. Exhibit 65 is a close-up photograph of blood, fecal
matter, and other materials on Marti’s bare buttocks and the backside of her upper
thighs.
All eight photographs are probative because they are accurate depictions of
both the crime scene and Marti’s body that would assist a jury to visualize the
crime scene as well as the extent of Marti’s injuries, and they corroborate
Langford’s, Trevino’s, and Brennan’s observations of the crime scene and Marti’s
injuries. See Williams, 301 S.W.3d at 691 (photographs were probative because
they depicted both crime scene and victim’s injuries); Chamberlain v. State, 998
32
S.W.2d 230, 237 (Tex. Crim. App. 1999) (affirming admission of crime scene
photos corroborating witness testimony). Exhibits 59 and 60, which show
contusions to Marti’s face and petechial hemorrhaging in one of her eyes, are also
probative because they corroborate the medical examiner’s testimony regarding
Marti’s cause of death (i.e., blunt force trauma to the head and strangulation). See
Chamberlain, 998 S.W.2d at 237. Exhibits 61–65 are also probative of sexual
assault and murder because they depict the force used against Marti and the extent
of the injuries inflicted upon her during that assault.
There were no eyewitnesses to the murder and sexual assault, and thus, aside
from these photographs, the only other evidence available to the State to establish
the condition of Marti’s body, the force used against Marti, and the extent of the
injuries inflicted upon her during that assault was the testimony of the various
witnesses present at the crime scene and the medical examiner. The witnesses’
testimony is undeniably enhanced by the corroborating photos. See Chamberlain,
998 S.W.2d at 237 (“Visual evidence accompanying testimony is most persuasive
and often gives the fact finder a point of comparison against which to test the
credibility of a witness and the validity of his conclusions.”).
These photographs are relevant and probative, and although disagreeable to
look at, there is nothing in the record to suggest that these photographs were
“offered solely to inflame the minds of the jury.” Erazo v. State, 144 S.W.3d 487,
33
491–92 (Tex. Crim. App. 2004) (“If a photograph is competent, material and
relevant to the issue on trial, it is not rendered inadmissible merely because it is
gruesome or might tend to arouse the passions of the jury, unless it is offered
solely to inflame the minds of the jury.”) As such, we cannot conclude that the
images appealed only to the jury’s emotional side and that the jury’s decision was
based on emotion rather than the relevant evidence introduced at trial. Finally,
considering the length of the trial, the State took a reasonable amount of time
before the jury to lay the foundation for the photographs and introduce them into
evidence.
Unquestionably disagreeable to look at, these photographs are highly
probative and they depict nothing more than the reality of the brutal crimes
committed against Marti. See Shuffield, 189 S.W.3d at 788 (holding court did not
abuse its discretion by admitting photographs that only showed complainant’s
injuries and were no more gruesome than expected); Sosa v. State, 230 S.W.3d
192, 196 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (stating prejudice
caused by photographs did not substantially outweigh their probative value;
photographs were no more gruesome than facts of offense). Considering the
probative value of the evidence, the potential to impress the jury in some irrational
yet indelible way, the time needed to develop the evidence, and the State’s need for
the evidence, we cannot say that the trial court abused its discretion when it
34
determined that the probative value of these photographs outweighed their
prejudicial impact. See Hernandez, 390 S.W.3d at 324; Shuffield, 189 S.W.3d at
787.
Appellant’s fourth point of error is overruled.
Conclusion
We affirm the trial court’s judgment.
Jim Sharp
Justice
Panel consists of Chief Justice Radack and Justices Sharp and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
35
R. T. Hardge v. State
Combined Opinion