Martinez v. State

• Citation: 186 S.W.3d 59
• Decision Date: 20 October 2005
• Docket Number: No. 01-04-00715-CR.,01-04-00715-CR.
• Parties: Gilbert Anthony MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

186 S.W.3d 59

Gilbert Anthony MARTINEZ, Appellant, v. The STATE of Texas, Appellee.

No. 01-04-00715-CR.

Court of Appeals of Texas, Houston (1st Dist.).

October 20, 2005.

COPYRIGHT MATERIAL OMITTED

Robert Morrow, Hocker & Morrow, Boyd & Mathews, Spring, TX, for Appellant.

Charles A. Rosenthal, Jr., District Attorney-Harris County, Alan Curry, Assistant District Attorney, Houston, TX, Appellee.

Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.

OPINION

LAURA CARTER HIGLEY, Justice.

Appellant, Gilbert Anthony Martinez, was charged by indictment with murdering the complainant by shooting her with a deadly weapon, namely a firearm. See TEX. PEN.CODE ANN. § 19.02 (Vernon 2003). The jury found appellant guilty as charged and assessed punishment at confinement for life.

In five issues, appellant contends that the trial court abused its discretion in (1) admitting DNA evidence from fingernail scrapings without a proper chain of custody, (2) refusing to strike the testimony of two witnesses who spoke to one another outside the courtroom, and (3) allowing hearsay into evidence over timely objections.

We affirm.

Background

On the night of November 2, 2000, appellant's girlfriend, the complainant April Dykes, was found shot to death in Idylwood Park in Houston. Earlier that evening, April had gone to visit a neighbor, Albert Castillo. April and Castillo went to the corner store in Castillo's car. Later, while they sat in the car and talked, appellant drove by, turned around, then parked near Castillo's car. Appellant drove a black Cadillac with a white right-front panel.

Appellant got out and approached the passenger side of Castillo's car. April ducked down in her seat to hide. Appellant saw April and told her to get out of Castillo's car while cursing at her. April hesitated, telling Castillo that she did not want to get out. Castillo told her to stay in the car, but April replied, "That's my boyfriend, I got to go." April got into appellant's Cadillac with appellant, Terrence "TJ" Brundage, and Alex Caballero, and the group headed toward Idylwood Park.

Shortly thereafter, Darryl Hickey and Sabrina Sheppard heard three gunshots from their respective homes near Idylwood Park. Hickey ran outside and saw three men running out of the park and getting into a dark-colored, older-model, four-door car with a light-colored front panel on the passenger side. Sheppard ran to the end of her driveway and saw a dark-colored vehicle with a white right-front panel at the park. She then saw three men run out of the park and get into the car. Hickey and Sheppard ran to the park and found April gasping for breath. Moments later, April died. Houston Police Sergeant Michael Peters arrived at the scene, "bagged" April's hands, and requested fingernail scrapings from the medical examiner.

The next day, Sergeant Peters received a report from Crime Stoppers that the shooter had been identified as "Gilbert Martinez." Sergeant Peters located appellant and asked him to come in and give a statement. In his statement, appellant asserted that he was not with April at the time of the incident and did not know the circumstances surrounding her death.

April's autopsy revealed that she had been shot three times in the chest, once at close range. Among the samples submitted for DNA analysis were scrapings from under her fingernails. The analysis indicated that appellant could not be excluded as a possible contributor to the material recovered from April's fingernails.

In January 2001, appellant told his ex-girlfriend Monica Parra that April was killed in his car during a drive-by shooting. When Parra continued to question him as to why there were no bullet holes in his car, appellant admitted that he killed April.

In November 2001, appellant began dating Maya Blakely. Blakely asked appellant multiple times about April's death over the course of several months. Appellant first asserted that she was killed by a jealous boyfriend. Eventually, appellant confessed that he shot April, and he took Blakely to Idlywood Park to show her where it occurred. Blakely contacted police, and appellant was arrested.

Chain of Custody

In his first issue, appellant contends that the "trial court abused its discretion in admitting DNA testimony concerning fingernail scrapings, when the chain of custody of those scrapings was not proven."

A. Standard of Review and Applicable Law

The standard of review for a trial court's ruling under a rule of evidence is abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000). A trial court abuses its discretion when it acts without guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1991). We review the trial court's ruling in light of what was before the trial court at the time the ruling was made and uphold the trial court's judgment if it lies within the zone of reasonable disagreement. Weatherred, 15 S.W.3d at 542.

As a condition precedent to the admission of evidence, the trial court must be satisfied that the evidence offered is what the proponent claims. TEX.R. EVID. 901(a); Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim.App.1998). This 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. Gallegos v. State, 776 S.W.2d 312, 315-16 (Tex.App.-Houston [1st Dist.] 1989, no pet.). Any gaps and minor theoretical breaches go to the weight rather than the admissibility of the evidence, absent a showing of tampering. Medellin v. State, 617 S.W.2d 229, 232 (Tex.Crim. App.1981); Gallegos, 776 S.W.2d at 315-16.

B. Analysis

Appellant argues that the chain of custody was broken because there was no testimony from the "doctor who supposedly collected [the fingernail scrapings]" or from the person who transported the evidence from the medical examiner's office to the crime lab. Appellant further asserts that there was no evidence showing how the fingernail scrapings were stored, tagged, or labeled or showing that the scrapings were given a consistent identifying number.

Contrary to appellant's argument, testimony was offered to show that the chain of custody was maintained. Sergeant Peters testified that he bagged April's hands at the crime scene and asked that fingernail scrapings be obtained by the Harris County Medical Examiner during the autopsy process.

The record reflects that Dr. Harminder Narula of the Harris County Medical Examiner's Office performed the autopsy; however, Dr. Narula was unavailable to testify at trial. Instead, Deputy Chief Medical Examiner Dr. Dwayne Wolf testified regarding the autopsy evidence. Dr. Wolf testified that it is common for a medical examiner to review autopsy reports prepared by colleagues and to testify about the findings. Indeed, the Court of Criminal Appeals has stated that the testimony of someone other than the doctor who performed the autopsy is sufficient for admissibility purposes. Mays v. State, 726 S.W.2d 937, 951 & n. 7 (Tex.Crim.App. 1986).

Dr. Wolf testified that April's body was given a unique "medical legal number" upon arrival and that the same medical legal number was used to identify materials from the autopsy. Dr. Wolf stated that the autopsy records were made at or near the time of the events recorded, were kept in the regular course of business of that office, and were made by an employee with personal knowledge of the contents. Fingernail scrapings were collected from both hands by Dr. Narula's assistant, while under Dr. Narula's direct observation and supervision. A wooden stick was used to scrape the fingernails and the samples were folded into a white piece of paper and sealed in an envelope.

Sergeant Peters testified that he transported the fingernail scrapings from the Medical Examiner's Office to the Houston Police Department ("HPD") Property Room. The scrapings were received by Hawan Wilson, in Centralized Evidence Receiving. Sergeant Peters also testified that he obtained a search warrant and brought appellant down to the HPD Crime Lab where he watched Dr. Joseph Chu obtain a blood sample from appellant.

Christy Kim, also of the HPD Crime Lab, testified that she received the fingernail scrapings from the property room and that the scrapings were "in the paper folds," matching the description Dr. Wolf gave. Kim also testified that she received appellant's blood sample and made blood stain cards. Kim extracted the DNA and sent out two samples. One was sent to Dr. Chu for analysis; a second sample was sent to Identigene by Connie Dieringer.

Senior Forensic DNA Analyst Robin Guidry testified that Identigene received seven items of evidence from the Houston Police Department, including fingernail scrapings from April and blood sample cards from appellant and Caballero. Guidry testified that Identigene's chain of custody report states that the samples were delivered by Connie Dieringer, of the Houston Police Department, and received in person by Jennifer McCue, a DNA analyst at Identigene. The sealed evidence was given a unique identification number and placed in a secure frozen storage. Guidry testified that she retrieved the items from the freezer and performed the DNA analysis. She compared the scrapings with the blood stain cards and concluded that, while Caballero could be excluded, appellant could not be excluded as a contributor of the DNA material recovered from April's fingernails.

Although there was no direct testimony by Dr. Narula, who performed the autopsy, or Hawan Wilson, who transported the evidence within HPD, the testimony of Sergeant Peters, Dr. Wolf, and Kim established the chain of custody of the fingernail scrapings from the scene, to the Medical Examiner's Office, and then to the HPD Crime Lab. See Mays, 726 S.W.2d...