Avila v. State

• Decision Date: 08 March 2000
• Docket Number: No. 04-98-00979-CR,04-98-00979-CR
• Citation: 18 S.W.3d 736
• Parties: (Tex.App.-San Antonio 2000) Ricardo Dante AVILA, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

Page 736

18 S.W.3d 736 (Tex.App.-San Antonio 2000)

Ricardo Dante AVILA, Appellant v. The STATE of Texas, Appellee

No. 04-98-00979-CR

In the Fourth Court of Appeals San Antonio

March 8, 2000

From the 365th Judicial District Court, Zavala County, Texas, Trial Court No. 98-05-02717-CR , Honorable Amado J. Abascal, III, Judge Presiding

[Copyrighted Material Omitted]

Sitting: Phil Hardberger, Chief Justice, Alma L. Lopez, Justice, Karen Angelini, Justice

OPINION

Opinion by: Karen Angelini, Justice

Nature of the Case

A jury found that Ricardo Dante Avila committed the offense of sexual assault and sentenced him to four years and six months confinement. He challenges his conviction in six issues. In his first two issues, Avila asserts the evidence is legally and factually insufficient to support his conviction. In his third issue, he alleges the trial court abused its discretion in admitting the results of deoxyribonucleic acid (DNA) testing. In his final three issues, Avila challenges the admission of the testimony of a victim of a separate rape. We address Avila's issues in an order different than that presented in his brief in order to offer a more logical explanation of our disposition in this case. We reverse and remand this case to the trial court for further proceedings.

Factual Background

On March 2, 1997, the complainant went to Crystal City with her older sister and a friend. After the three girls checked into a motel, the two older girls crossed the border into Mexico. The complainant remained in Crystal City and spent the evening driving around town with friends.

After dropping off her friends at approximately 2:00 a.m., the complainant saw Avila flash his headlights at her. Avila mistook the complainant for her older sister. However, once he realized who was actually driving the car, Avila waved the complainant on.

The complainant returned to her motel room and prepared herself for bed. Just before she fell asleep, she heard a honk outside. She peered around the curtain to see who it was, and realizing it was Avila, ignored him. The complainant saw him again approximately ten minutes later on the side of the motel, as if he was heading for the road. She then went to sleep.

The complainant was awakened suddenly by a slap to her face. A man had entered her room. He turned her over onto her stomach and raped her. The complainant never saw the perpetrator.

After the man left, the complainant waited a little while and then left the motel. She went to a friend's house and then to see her mother, who took her to the police station. After explaining to the police what happened, she went to the hospital, where a rape kit was administered.

Admissibility of the Evidence

In three issues, Avila challenges the admission of DNA and extraneous offense evidence against him. First, he complains the trial court abused its discretion in admitting the results of DNA testing because the State did not sufficiently establish a chain of custody to support that evidence. He also contends the trial judge's admission of extraneous offense evidence to prove identity was erroneous because the extraneous offense was not substantially similar to the charged offense. Finally, Avila asserts that the extraneous offense evidence is not relevant and its probative value was substantially outweighed by the danger of unfair prejudice.

Standard of Review

The admission of evidence is a matter within the discretion of the trial court. See Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990)(opinion on reh'g). Accordingly, the trial court's admission of evidence is reviewed under an abuse of discretion standard. See id. at 379-80. As long as the trial court's ruling was within the "zone of reasonable disagreement," there is no abuse of discretion and the trial court's ruling will be upheld. See Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim. App. 1996); Montgomery, 810 S.W.2d at 391. The trial judge does not abuse his discretion when he admits evidence based on the belief that a reasonable juror could find that the evidence has been authenticated or identified. See Pondexter v. State, 942 S.W.2d 577, 586 (Tex. Crim. App. 1996).

DNA Evidence

Avila contends that the trial court erred in admitting the results of DNA testing into evidence. He specifically complains that the State failed to show, by establishing a proper chain of custody, that the DNA testing was based on a comparison of bodily fluids he contributed.

Texas Rule of Evidence 901 governs authentication. See Tex. R. Evid. 901. As a predicate to admissibility, Rule 901 requires a party who offers an item into evidence to establish to the trial judge's satisfaction that the item is what the party represents it to be. See id. When the evidence being introduced does not have any unique characteristics, a chain of custody may be required to prove that the item presented in trial is the same one involved in the events at issue. See Jackson v. State, 968 S.W.2d 495, 500 (Tex. App.-Texarkana 1998, pet. ref'd). Likewise, to admit the results of scientific testing, a proper chain of custody must be established. See, e.g., Smith v. State, 450 S.W.2d 92, 94 (Tex. Crim. App. 1970); Garner v. State, 848 S.W.2d 799, 803 (Tex. App.-Corpus Christi 1993, no writ); Moone v. State, 728 S.W.2d 928, 930 (Tex. App.-Houston [14th Dist.] 1987, no writ).

The chain of custody is conclusively established if an officer testifies that he seized the item of physical evidence, tagged it, placed an identifying mark on it, placed it in evidence storage, and retrieved the item for trial. Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997). Similarly, when evidence is sent to a laboratory for analysis, to conclusively establish the chain of custody, the proponent must introduce testimony showing the laboratory handled the evidence the same way. See Medellin v. State, 617 S.W.2d 229, 232 (Tex. Crim. App. [Panel Op.] 1981). However, when the State completes the chain of custody from the initial collection of the evidence to inside the laboratory, most questions concerning care and custody, including gaps and minor theoretical breaches, go to the weight of the evidence, not its admissibility. See Medellin, 617 S.W.2d at 232; Silva v. State, 989 S.W.2d 64, 68 (Tex. App.-San Antonio 1998, pet. ref'd); Stone v. State, 794 S.W.2d 868, 870 (Tex. App.-El Paso 1990, no writ).

We have before us the following evidence concerning the chain of custody of the complainant's rape kit, her panties, and Avila's underwear:

1) the hospital in Uvalde conducted a rape kit on the complainant;

2) Avila surrendered his underwear to Officer Erasmo Ramon, who placed the underwear in the evidence room;

3) Officer Ramon transported and submitted the rape kit, the complainant's panties, shorts, and her t-shirt, as well as Avila's underwear to Javier Flores, a forensic analyst for the Texas Department of Public Safety laboratory.

In this regard, Avila essentially asserts that the State did not prove the initial link in the chain of custody and therefore the trial judge abused his discretion in admitting the results of the DNA analysis. However, Rule 901 only requires a showing that satisfies the trial judge that the item in question is what the State claims. See Tex. R. Evid. 901; Garner v. State, 939 S.W.2d 802, 805 (Tex. App.-Ft. Worth 1997, pet. ref'd). We conclude the information elicited from the State was enough for the trial judge to have found that the items the State's expert relied upon in drawing his conclusions about the DNA evidence were what they purported them to be. Finding no abuse of discretion, we overrule Avila's third issue.

Extraneous Offense

Additionally, Avila complains that the admission of the testimony of a second rape victim at his trial was an abuse of discretion because it constituted inadmissible extraneous offense evidence.

Rule 404(b) - Relevancy

Generally, evidence of other offenses is not admissible as evidence of guilt. See Tex. R. Evid. 404. However, in Albrecht v. State, the Court of Criminal Appeals stated that "[e]vidence of other crimes committed by the accused may be admitted, ..., where such evidence is shown to be both material and relevant to a contested issue in the case." 486 S.W.2d 97, 100 (Tex. Crim. App. 1972). Therefore, evidence of an extraneous offense may be admissible to show identity when identity is an issue in the case. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). However, to be admissible to show identity, there must be a showing that the extraneous offense committed by the accused was so nearly identical in method to the charged offense as to earmark it as the handiwork of the accused. Bishop v. State, 869 S.W.2d 342, 346 (Tex. Crim. App. 1993); Messenger v. State, 638 S.W.2d 883, 886 (Tex. Crim. App. [Panel Op.] 1982), overruled on other grounds, Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). The characteristics must be so unusual and distinctive as to be like a signature. Bishop, 869 S.W.2d at 346; Messenger, 638 S.W.2d at 886.

Here, identity is clearly at issue because the complainant never saw the man who raped her. She therefore was unable to provide a positive identification of who committed the offense. In this regard, the State offered evidence of an extraneous offense to prove Avila committed the offense. The State argued during a hearing on Avila's motion in limine to exclude the evidence that the extraneous rape was extremely similar to the offense charged and was therefore relevant to prove identity. Specifically, the State explained that both rapes "occur[red] in the dark, at night. In both instances, the victim was asleep; both occurred here in the city limits of Crystal City; both instances the perpetrator entered the room without the consent of the victim. In both instances the perpetrator turned the victims over. In both instances the sexual act was essentially in the same type of position." The...