Elvin Charles Boult v. State

Opinion issued June 10, 2010 In The Court of Appeals For The First District of Texas ———————————— NO. 01-09-00086-CR ——————————— Elvin Charles Boult, Appellant V. The State of Texas, Appellee On Appeal from the 232nd District Court Harris County County, Texas Trial Court Case No. 1090798 MEMORANDUM OPINION A jury convicted appellant Elvin Charles Boult of aggravated sexual assault of a child and sentenced him to 30 years’ confinement in prison. See Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2009). In one issue, Boult contends that the trial court abused its discretion by admitting testimony regarding DNA testing because, he alleges, there was a gap in the chain of custody of the buccal swab sample provided by him. We affirm. BACKGROUND Boult dated the complainant’s mother for approximately two years before the incident that led to this prosecution. On September 16, 2006, 13-year-old A.D. and her 14-year-old sister T.D. spent the day with relatives. When they returned home between 8:00 and 9:00 p.m., they found Boult watching television with their younger brother. Although Boult had been to their house with their mother, A.D. and T.D. both testified that he had never before been there without her. Boult took all three children to a fast-food restaurant, bought food, and returned home between 10:00 and 11:00 p.m. A.D. and T.D. went to their shared bedroom to eat and watch television before falling asleep. A.D. testified that, after T.D. fell asleep, Boult came into her bedroom, fondled her, pulled down her shorts and underwear, and sexually assaulted her. He then left the room to take a shower. A.D. immediately woke her sister and told her that Boult had raped her. The girls fled to an aunt’s house nearby, and their aunt called the police. A.D. went by ambulance to Texas Children’s Hospital, where she underwent a sexual assault examination. The sexual assault nurse examiner (SANE) testified that she collected samples of A.D.’s hair and blood and swabs from her mouth, vagina, and anal area. In addition, the SANE took A.D.’s clothing. The SANE sealed the clothing and the samples and placed the samples in a refrigerator accessible only to other SANEs. Within 24 hours, Houston Police Officer J. Landrum picked up the sexual assault kit from Texas Children’s Hospital and took it to the Houston Police Department (HPD) property room, where it was tagged into evidence and secured. On April 9, 2007, D. Wine, a criminal investigator with the Harris County District Attorney’s office, collected a buccal swab (a sample from the inside of the mouth) from Boult, which Boult had voluntarily provided. Wine sealed the sample and took it to HPD’s crime laboratory. R. Calvin, the supervisor of the HPD crime lab’s “centralized evidence receiving,” initialed the package before storing it. Approximately 13 months later, C. Pope, a senior evidence technician for HPD’s crime lab, received the package. She testified that the package was “a sealed envelope and it was labeled with evidence tape on it. It had not been tampered with.” She testified that she could tell it had not been tampered with because “the evidence tape was not broken.” Pope placed the package into evidence storage. Six days later, J. Rehfuss, a criminalist for HPD’s crime lab, sent the package to Orchid Cellmark, a private forensic laboratory in Dallas, Texas. The package was sent by overnight courier service. A. Rogers, a forensic DNA analyst for Orchid Cellmark, testified that when the evidence in this case was received, the seals were intact and there were no signs of tampering. Rogers explained that evidence tape is used “to ensure that the envelope stay[s] secure during transportation and there’s no signs of tampering and just to make sure nobody has entered that shouldn’t have.” She testified that once the evidence is tested, it is repackaged and more evidence tape is affixed. She said that the Orchid Cellmark procedure also requires that the person opening the package record the day the package was opened and the initials of the person who opened it. At trial, A.D. testified that Boult sexually assaulted her, and her sister T.D. testified that A.D. woke her up saying that Boult had raped her. Rogers testified that the sperm fraction of the samples taken from A.D.’s vagina and from her pants matched the DNA from Boult’s buccal swab sample. Rogers testified that they concluded “in the absence of an identical twin” the “DNA profile obtained from the sperm fraction[s]” of those two samples originated from Boult. Boult objected twice to the admission of Rogers’s testimony, arguing that there was a gap in the chain of custody. Specifically, his theory was that there was no testimony to explain an extra piece of HPD evidence tape on the envelope containing Boult’s buccal swab, which, he argued, must mean that the HPD crime lab opened the package and tampered with the swab. The trial court overruled Boult’s objections and denied his request to strike Rogers’s testimony. The State recalled Rogers who testified about chain-of-custody issues but did not reiterate her findings or conclusions. STANDARD OF REVIEW We review the sufficiency of an evidentiary predicate and the trial court’s decision to admit or exclude evidence for abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Smith v. State, 683 S.W.2d 393, 405 (Tex. Crim. App. 1984); Foster v. State, 101 S.W.3d 490, 498 (Tex. App.—Houston [1st Dist.] 2002, no pet.). A trial court abuses its discretion when it acts without regard to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). We review the trial court’s ruling in light of what was before it when it ruled, Weatherred, 15 S.W.3d at 542, and we will uphold the trial court’s ruling if it is reasonably supported by the record. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). CHAIN OF CUSTODY Absent proof of tampering, questions regarding the chain of custody go to the weight of the evidence presented at trial. Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997); Gallegos v. State, 776 S.W.2d 312, 315 (Tex. App.—Houston [1st Dist.] 1989, no pet.); accord Martinez v. State, 186 S.W.3d 59, 62 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). When the State shows the beginning and the end of a chain of custody, any intermediate gaps go to the weight rather than the admissibility of the evidence, particularly if the chain of custody ends at a laboratory. Martinez, 186 S.W.3d at 62; Gallegos, 776 S.W.2d at 315–16. Wine testified that he took a buccal swab from Boult, packaged and sealed it, and delivered it to the HPD crime lab (central evidence receiving). The package was then transferred to Pope, who secured it in evidence. Pope testified that Rehfuss later shipped it to Orchid Cellmark for testing. The State showed a complete chain of custody for the buccal swab, which was used as a known sample of Boult’s DNA for comparison against the sperm fractions obtained from A.D.’s clothing and body. Pope and Rogers both testified that they saw no evidence of tampering. Boult contends that the unexplained HPD evidence tape is circumstantial evidence of tampering. He also argues that his case is analogous to Garner v. State, 848 S.W.2d 799 (Tex. App.—Corpus Christi 1993, no pet.). It is not. Garner had been furloughed from jail to attend a relative’s funeral. Id. at 800. When he returned to jail, he was under the influence of drugs, and the jailer found a syringe, which contained a trace amount of liquid, hidden in his sock. Id. The jailer put the syringe on the sheriff’s desk, where it remained for approximately 60 to 90 minutes. Id. The sheriff tied an evidence tag around it and kept it in a locked desk drawer for a week before mailing it to a laboratory in Corpus Christi. Id. at 801. That lab conducted no testing. Id. “Approximately three weeks later, the DPS lab sent [the sheriff] a box containing a syringe, but [the sheriff did] not remember if it had an evidence tag on it.” Id. That syringe remained locked in the sheriff’s desk for 14 months until it was sent to another laboratory, which found trace amounts of cocaine residue inside of it. Id. The court of appeals reversed Garner’s conviction because the State failed to prove a proper chain of custody for the syringe. Id. at 803. The court held that the State failed to prove that the syringe that was tested was the same syringe the jailer seized from Garner after he returned from the funeral because the syringe that was tested and admitted bore no identifying markings or tags. Id. Here, the buccal swab about which Boult complains bore Boult’s name and Pope testified that HPD’s records showed that Wine brought the package to HPD’s crime lab. Boult’s case is more analogous to DeLeon v. State, 505 S.W.2d 288 (Tex. Crim. App. 1974). DeLeon was convicted for selling heroin. Id. at 288. The evidence showed that Officer Chevera purchased two balloons of heroin from DeLeon, conducted a field test, sealed them in an envelope, and gave them to Officer Cuellar. Id. at 289. Two days later, Officer Cuellar delivered the balloons, still sealed in the envelope, to a police chemist. Id. DeLeon contended that the absence of testimony regarding the two days Cuellar possessed the evidence rendered the evidentiary predicate insufficient. Id. The Texas Court of Criminal Appeals disagreed, stating, “Absent a showing that the envelopes had been tampered with or changed, appellant’s objection goes to the weight rather than the admissibility of the evidence.” Id. Boult contends that the presence of additional evidence tape suggests that the buccal swab package was opened and then resealed. This speculation does not demonstrate tampering with evidence. The relevant evidence was not the envelope itself but the contents of the envelope, i.e., the buccal swab. Evidence that the envelope was opened and closed is not tantamount to evidence that the contents of the envelope were altered in any way. Moreover, “[t]he State is not required to provide a moment-by-moment account of the whereabouts of evidence from the instant it is seized until it is introduced at trial.” Reed v. State, 158 S.W.3d 44, 52 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). Because there was no evidence of tampering and because the State showed the beginning and end of the chain of custody, which ended at a laboratory, any alleged gaps in the chain of custody go to the weight of the evidence, not its admissibility. See Lagrone, 942 S.W.2d at 617; Gallegos, 776 S.W.2d at 315–16. We conclude that the trial court did not act without regard to guiding rules and principles, and we hold that the trial court did not abuse its discretion by admitting Rogers’s testimony regarding the DNA testing conducted in this case. See, e.g., Montgomery, 810 S.W.2d at 380. We overrule Boult’s sole issue. CONCLUSION We affirm the judgment of the trial court. Michael Massengale Justice Panel consists of Justices Jennings, Alcala, and Massengale. Do not publish. Tex. R. App. P. 47.2(b).