### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00619-CR

Jack Warren Davis, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT

NO. CR-89-251, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Ap pellant Jack Warren Davis appeals this—his second conviction for the capital

murder of Kathie Balonis on November 17, 1989. S ee Act of April 16, 1985, 69th Leg., R.S., ch.

44, § 1, 1985 Tex. Ge n. Laws 434 (Tex. Pen. Code Ann. § 19.03(a)(2)(b), since amended).

Appellant was charged in two counts with causing the death of Balonis by strangulation while in the

course of committing or attempting to commit the offense of aggravated sexual assault or in the

course of attempting to commit the offense of burglary. The jury returned a general verdict finding1 When different theories of the offense are submitted to the jury in the disjunctive, a general

verdict is sufficient if the evidence supports one of the theories. See McDuff v. State , 939 S.W.2d

607, 614 (Tex. Crim. App. 1997); Ful l er v. State

, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992);

Kitchens v. State , 823 S.W.2d 256, 257-58 (Tex. Crim. App. 1991).

2 appellant guilty as “charged in the indictment.” 1 The trial court assessed life imprisonment as the

State had waived the death penalty. We will affirm the conviction.

Case History

This cause has had a long history. On May 11, 1990, a jury convicted appellant of

the offense, but was unable to answer the special issue on deliberateness. The trial court assessed

punishment at life imprisonment. That conviction was reversed by this Court based on prosecutorial

misconduct and the cause was rema nded to the trial court. D avis v. State

, 831 S.W.2d 426 (Tex.

App.—Austin 1 992, pet. ref’d) ( D avis I ). Subsequently, appellant filed a pretrial writ of habeas

corpus alleging that any retrial was barred by the double jeopardy provisions of the Texas and United

States Constitutions. The habeas court denied relief and this Court affirmed. E x parte Davis

, 893

S.W.2d 252 (Tex. App.—Austin 1995, pet. granted) ( D avis II ). The Texas Court of Criminal

Appeals affirmed this Court’s action. E x parte Davis

, 957 S.W.2d 9 (Tex. Crim. App. 1997) ( Davis

III ), cert. denied , 523 U.S. 1023 (1998).

Fred Zain, an employee of th e Bexar County Forensic Scientific Center (BCFSC),

testified at the first trial. D avis I

, 831 S.W.2d at 434, 442. Subsequently, it was learned that Zain’s

assistant, Henry Hollyday, had actually done the DNA analysis that Zain testifie d that he had2 On June 1, 1990, District Attorney Bill Reimer, the original prosecutor, was recused. On

Decem ber 3, 1992, attorney Ray Taylor was appointed as District Attorney Pro Tem. Taylor

withdrew from the case on December 6, 2000. The then elected Criminal District Attorney Dibrell

Waldrip (who had been a witness in the first trial) was recused. On December 7, 2000, Lisa Tanner,

Assistant Attorney General, was appointed District Attorney Pro Tem. She represented the State on

the second trial and now on appeal.

3 In another part of appellant’s brief, a fifth point of error was added: “Trial Court erred in

limiting the cross-examination of witnesses regarding other acts of Fred Zain in other cases.” This

fifth point of error was not briefed and was withdrawn and abandoned by appellant’s counsel during

oral argument before this Court.

3 performed; that in a civil suit deposition given by Zain it was established that Zain was in error as

the bl ood on some carpet samples was not appellant’s but the victim’s blood; and finally Zain

acknowledged an omission in his report about appellant’s blood being on the collar of the victim’s

shirt was an oversight. Investigations followed and Zain exercised his privilege against selfincrimination under the Fifth Amendment to the United States Constitution when called to testify

at the habeas corpus pro ceedings ( D avis II ). All of this led to a re-gathering of the evidence, the

employment of a blood spatter expert, and a ret esting of some of the evidence prior to the second

trial.

In the interim between trials, there was also a change in prosecutors. 2

Following an amend ment of the indictment and an agreed change of venue,

appellant’s second trial was conducted in Blanco County. S ee Tex. Code Crim. Proc. Ann. art. 31.09

(West Supp. 2003). The appeal comes to this Court from Comal County. See id. art. 31.08.

Points of Error

Appellant advances four issues or points of error 3 as follows:4

Trial Court erred in overruling Appellant’s objection to the evidence taken from the

apartment of Kathy Balonis and from Appellant based on the State’s inability to

authenticate the manner in which the evidence was handled without testimony from

Fred Zain?

Trial Court erred in granting the State’s Motion in Limine and prohibited Appellant

evidence concerning the manner in which Fred Zain handled evidence in other cases

to show that the State could not properly authenticate the phy sical evidence

presented?

Trial Court erred in overruling Appellant’s motion to suppress evidence based on the

State’s inability to properly authenticate any physical evidence without the testimony

of Fred Zain.

Trial court erred in sustaining the State’s objection to the testimony of J eanine

Arvizu regarding the manner in which Fred Zain handled evidence in other cases.

[sic]

Appellant’s brief is unusually structured and not always in accordance with our

briefing rules. S ee Tex. R. App. P. 38.1. The points of error do not always correspond to the subject

matters discussed under the “Argument and Authorities” division of appellant’s brief. Appellant’s

manner of briefing has rendered our task of responding to appellant’s contentions difficult.

Background and Facts

In light of appellant’s contentions, the background and facts of this second trial are

essential to a proper understanding of the case. Appellant’s brief under “Statement of Facts” quotes

the summary of evidence from this Court’s opinion in D avis I

, 831 S.W.2d at 429-433, involving

the first trial. Appellant’s reference to the facts of the instant case is limited. We find that the

State’s brief has accurately discussed the background and fac t s of the instant case with record

references and with an important discussion of the physical and forensic evidence. We will set forth4 The State’s version refers to “CR” and “RR” as referring to the instant case. The first trial

is referred to as “1st CR” and “1st RR” and the State habeas corpus proceeding is mentioned as

“CRSH” and RRSH.”

5 the State’s version while eliminating the footnotes: The State’s version does contain some references

to the first trial, Davis I , and the State habeas corpus proceedings, Davis II , which followed. 4

STATEMENT OF FACTS

In 1989, Kathi e Balonis was a 24 year old 3rd grade teacher at Bulverde

Elementary School (6 RR 66, 7 RR 66). In June 1989, Kathie moved into the New

Braunfels Oaks Apartments (hereinafter referred to as the Oaks) in New Braunfels,

Texas at the urging of her older sister, Karen Balonis, who already lived there. (6 RR

67 -68, 7 RR 69). Kathie had recently separated from her husband and the divorce

was finalized in October 1989. (6 RR 67, 7 RR 67). The Oaks had six buildings in

the complex. Kathie lived on the second floor of Building 2 on the western corner.

Next door to her lived Marci French. Appellant lived on the ground floor of Building

2 in the second apartment from the east end. The building had three staircases, one

on each end and one in the middle. (6 RR 110-111, State’s Exhibit 8).

Appellant was the maintenance man at the Oaks. (6 RR 101, 7 RR 73). In that

role, he had a passkey that gave him access to every apartment in the Oaks, 24 hours

a day. (12 RR 232). On the evening of November 17, 1989, Appellant was wearing

blue jeans, a tan, short-sleeved button down shirt, a blue down-filled v est, tennis

shoes, and a maroon baseball cap. (6 RR 172). He was average build with brown

hair that was somewhat long, and he had a thin beard. (State’s Exhibit 9). On two

separate occasions in the week prior to Kathie Balonis’ murder, Appellant was seen

using his passkey to go into her apartment at night when she was not home. (8 RR

148, 166). There were no work orders reflecting any maintenance calls to her

apartment during that time period. (8 RR 170-172, 12 RR 234, State’s Exhibit 29).

On the evening of November 17, 1989, Kathie went to a functi on held at her

school. Afterwards, she stopped by a Target store in San Antonio to buy linens for

her bed. She then traveled to Canyon Lake to visit her parents, Charles and Louise

Balonis, who had just returned from a trip out of state. (7 RR 81). They visited for

a short time, then Kathie headed home to the Oaks. (6 RR 74-75). Kathie had no6

additional plans for that evening. (6 RR 76, 82). She had been dating a dentist

named Gary Moczygemba for approximately two months, but he had gone hunting

in South Texas with a friend. (6 RR 69, 76). When Kathie arrived home at the Oaks,

she found her sister doing her laundry. (7 RR 78). Kathie stopped in the laundry

room and visited with Karen for approximately 20 minutes, sh owed Karen a dust

ruffle she just bought to put on her bed, then went up to her apartment around 9:00

p.m. (7 RR 80-81).

Shortly after 9:30 p.m., Karen went to the laundry room to put her clothes in the

dryer. (7 RR 84). While she was separating her clothes out, Karen realized that she

h ad forgotten fabric softener, so she ran back up to her apartment t o get it. (7 RR

85). On her way back up to her apartment after having gotten the fabric softener and

separating out her clothes, Karen heard Kathie’s front door, which made a very

distinctive sound. (7 RR 87). There did not appear to be any lights on in Kathie’s

apartment. (7 RR 87). After hanging up her laundry, Karen called Kathie’s

apartment but got no answer even though she let the phone ring for a long time. (7

RR 87).

The western stairs in Building 2 ran directly in fro nt of Marci French’s

apartment and ended in front of a large picture window in her living room. (8 RR

183). Marci continuously kept the blinds on that picture window halfway up, so that

her cat could sit on the ledge and look out. (8 RR 184). Consequently, anyone who

came up the western staircase of Building 2 and attempted to go t o Kathie’s

apartment would be seen by someone sitting in Marci’s living room. (8 RR 185).

Marci and Kathie’s apartments were offset somewhat, so one could not see Kathie’s

front door from Marci’s. (6 RR 122). However, the balcony was so small that one

could take two steps from Marci’s front door and be able to see Kathie’s door. (8 RR

183).

On November 17, 1989, Marci French had company. Shelly Flynn, a friend

from college, and her toddler son had flown in from Idaho to spend the upcoming

Thanksgiving holiday with Marci. (8 RR 189). Shelly’s parents, Mr. and Mrs.

Kenneth Stainbrook, also arrived at Marci’s apartment that evening. They lived in

Minnesota and had traveled in their mo tor home to visit Marci and Shelly. (8 RR

190). Marci, Shelly, Mr. and Mrs. Stainbrook, and Shelly’s son ran several errands

that evening and arrived back to t he apartment at about 9:00 p.m. They all went

inside and visited in Marci’s living room. (8 RR 191).

Shortly after 9:30 p.m., Marci heard “rumbling noises” coming from the

direction of Kathie’s apartment. (9 RR 194-195). Sometime between 9:30 and 10:00

p.m., Mr. Stainbrook heard the vibration of someone coming up the stairs just outside

of Marci’s apartment. (9 RR 156). He looked out the window and saw a man at the7

top of the stairs who was wearing a blue vest and a baseball cap. (9 RR 157-158).

Upon arriving at the top of the stairs, the man walked in a westward direction, which

was towards Kathie’s apartment. (9 RR 159). Some minutes later, Mr. Stainbrook

saw the same man walk from the direction of Kathie Balonis’ apartment, pass in front

of Marci’s window, then continue in an eastwardly direction along the second floor

balcony. (9 RR 159-160). Mr. and Mrs. Stainbrook retired to the motor home for the

night at approximately 10:00 p.m. (8 RR 197, 9 RR 91, 154).

After the Stainbrooks retired, Marci and Shelly continued to visit in Marci’s

living room. (8 RR 197). Their conversation was interrupted when Marci heard

noises outside of her apartment. In response, she looked out the window and saw a

man pass in front of her apartment on the balcony going from east to west towards

Kathie’s apartment. Marci was only able to see the side of the man from his ear to

his waist. She saw that he was a white male wearing a light colored short-sleeve

shirt, a blue puffy, tight-fitting vest, and had brown “scraggly” hair and was unshaven

with “scraggly sideburns.” (8 RR 198-199). Shelly saw the same man at the same

time near the top of the stairs. She described him as being a white male wearing a

lighter-colored short-sleeve shirt and a blue vest with “scruffy sideburns.” (9 RR 92-

93, 133, 142). She saw the man go in the direction of Kathie’s apartment. (9 RR 93-

94).

Marci was surprised by the presence of the man, because nobody ever traveled

across the balcony in that fashion. (8 RR 200). Thus, she immediately stepped

outside of her front door and looked towards Kathie’s apartment. She saw nothing.

(8 RR 200, 9 RR 94). She deduced that the man was in Kathie’s apartment because

he would not have had time to get down the stairs before she stepped outside. (8 RR

202). Marci was concerned for Kathie’s well-being since it was late at night, but

concluded that she must have been expecting so meone. (8 RR 202, 9 RR 94).

Shortly thereafter, Marci heard someone run ning down the steps outside of her

apartment. (8 RR 203). At that same time, Shelly looked out and saw the same man

she’d seen moments earlier, going down the stairs. She commented to Marci, “there

he goes again.” (9 RR 203-204, 9 RR 95). In response, both Marci and Shelly ran

out onto the balcony. Kathie’s door was shut and nobody was in the courtyard of the

complex. (8 RR 204, 9 RR 96). Thus, they both went back inside. (8 RR 204).

After Marci and Shelly went inside, Marci sat with her back to the window, then

heard someone running up the stairs outside of her apartment. (8 RR 205). Shelly,

who was sitting facing the window, saw the same man as she had seen before come

up the stairs and go in the direction of Kathie’s apartment. (9 RR 96-97). Both girls

again ran out of Marci’s apartment and looked around. Again, they saw nothing. At

that point, Marci decided to go over to Kathie’s apartment to check on her. (8 RR

206). However, as she was going to the door, she saw someone coming from8

Kathie’s apartment. She bent down to look out her window and saw Appellant

standing at the top of

the stairs. (8 RR 207). She recognized Appellant as the

maintenance man; in fact, she commented to Shelly, “Oh, that’s the maintenance

man. She must be having maintenance trouble.” (8 RR 207, 9 RR 101). Shelly

looked out and saw Appellant

– the man Marci referred to as the maintenance man.

Appellant was the same man Shelly had previously seen three separate times. (9 RR

101). When Marci saw Appellant at the top of the stairs, he appeared to be very

calm. (8 RR 208). In fact, his demeanor calmed her, and Marci decided not to go

check on Kathie. (8 RR 208-209). After Marci saw Appellant calmly walk down the

stairs, she went to the wall that separated her and Kathie’s apartments and knocked

on it. She got no response. (8 RR 209-210).

The Oaks was managed by Carolyn Toth . Her mother, Doris Simms, was the

assistant manager and lived in an apartment in the complex. At approximately 7:00

p.m., Toth and Simms took Mr. Simms across town to play bingo. They left Simms’

apartment again around 9:30 to 9:45 to pick him up from bingo. (12 RR 238, 14 RR

120). As they were leaving the Oaks, Toth and Simms noticed a “burnt orange or

beer bottle color” Vega like car speeding out of the Oaks parking lot. (12 RR 206,

14 RR 94). About 10:20 p.m. on November 17, Appellant knocked at Simms’ door.

When Toth answered the door, she found Appellant to be very upset. He said to her

“Carolyn, Carolyn, it’s horrible, it’s horrible. You’ve got to come out here. . . . The

girl in 202.

. . I think she might have been stabbed.” (12 RR 209-210). In response,

Toth called the police. (12 RR 211). Toth immediately noticed that Appellant had

blood on his hands and jeans. (12 RR 247). In fact, she commented to him when he

first arrived at Simms’ apartment, “My God, you’ve got blood all over you!” (12 RR

270).

Appellant testified that he had gone out on his fr ont porch a little after 10:00

p.m. on November 17, 1989 to smoke a cigarette. (14 RR 177). He claimed to have

heard someone shout “Hey” at the other end of Building 2. He looked that way and

saw a man coming down the west stairs. (14 RR 179). He described the man as

being white, having an average build, with stringy shoul d er-length hair wearing a

white t-shir t, blue jeans, and maybe tennis shoes. (14 RR 180). He said the man

walked through the courtyard, along the backside of the pool out to the parking lot

by Buildings 5 and 6. (14 RR 181). Appellant said he followed the man until he saw

him get into a “beer-bottle,” “orange brown mixed” Vega and drive away. (14 RR

182). Appellant said that he knew “something wasn’t right” and decided to

investigate. (14 RR 183). Appellant said that he went up the west stairs of Building

2, saw Marci French and her “company,” and proceeded to Kathie’s apartment. (14

RR 183). He said that he knocked on the door, got no answer, pulled out his passkey,

but found the door to be unlocked, so he opened it. He said that he called out

“Maintenance” two times then went in. (14 RR 184). Appellant said that when he9

went into Kathie’s apartment, her bed was blocking the bedroom door. (14 RR 196).

He said he went around the bed, found Kathie, knelt on her right side, placed both of

his hands un derneath her shoulders, lifted her up, shook her, and called her name.

(14 RR 188). Appellant said he got no response, so he put Kathie down and left the

bedroom just as he came, then went straight to the Simms apartment for help. (14

RR 189-190).

At about 10:20 p.m., Karen had gone back down to the laundry room to get her

clothes. She saw Toth, Simms, and Appellant calmly standing in front of the laundry

room talking. (7 RR 88-89). As Karen passed, Toth told her that her “sister had been

stabbed.” (7 RR 89). Karen ran up to her sister’s apartment, went inside and

immediately noticed that Kathie’s bed was blocking the door to her bedroom. (7 RR

91). Karen hopped over the bed and found Kathie sprawled out on her bedroom

floor, her head under the bed, her legs spread, her pants and underwear down to her

ankles. Kathie’s shirt was pulled up, exposing her abdomen. Karen immediately

noticed a cut to Kathie’s abdomen area. (7 RR 92-93).

Marci saw Karen run up the stairs outside of her apartment, looking “w ild-eyed.”

(8 RR 210-211). Marci immediately knew something was wrong so she followed

Karen to Kathie’s apartment. (8 RR 211). As soon as she got into the apartment,

Karen asked her to call the police. (7 RR 95, 8 RR 212). Marci ran back to her

apartment and asked Shelly to call the police. (9 RR 103). She then ran back to

assist Karen who had begun d oing CPR on Kathie. (7 RR 94, 8 RR 213). Shelly

the n ran to Kathie’s apartment with the telephone because, since she was from out

of town, she did not know the address to tell the police. (9 RR 103). Thus, she gave

Marci the phone and she assisted Karen by pu tting pressure on the wounds to

Kathie’s abdomen. (7 RR 95, 9 RR 105). Shelly got blood on one of her hands,

which she later washed off in Marci’s sink. (9 RR 109). Karen Balonis got no blood

on her hands in her attempts to help her sister. (7 RR 98, 16 RR 23, 35).

Scott Lange was the first officer on the scene. (6 RR 96). He found Karen

doing CPR on Kathie. He attempted to radio for EMS assistance from Kathie’s

bedroom. However, his radio would only work outdoors, so he immediately ran out

on the balcony. (6 RR 97-98). Dennis Keating arrived shortly after Lange. (6 RR

99). He removed Karen from Kathie’s bedroom because she was “hysterical.” (7 RR

204). In order to assist the EMS personnel, Keating removed Kathie’s bed from her

doorway and stood it up against a bedroom wall. (7 RR 205). After leaving Kathie’s

apartment, both Keating and Lange talked with Appellant, who told them of the longhaired man he says he saw, without any description of the man’s clothing, the color

of his car, or his direction of travel. (6 RR 101-102). Lange noted that one could

smell alcohol on Appellant’s breath and he appeared to be intoxicated. (6 RR 105).

In response, Lange radioed a “Be on the Lookout” or “BOLO” to dispatch, which he10

heard go out to officers in the area minutes later. (6 RR 104, 147). Both Lange and

Keating, as we ll as other officers at the scene, noted that Appellant appeared to be

overly hysterical over Kathie’s death. In fact, several of them thought it odd that

Appellant appeared more distressed than even Karen. (6 RR 106, 7 RR 209, 10 RR

103).

Dennis Keating interviewed Marci French and Shelly Flynn on the upstairs

balcony of Building 2 very shortly after Kathie’s murder. Keating audiotaped his

interview with Marci, but the batteries ran out before he could tape S helly’s

interview. (7 RR 207). Both girls told Keating of seeing the man in the “blue puffy

vest.” Appellant matched the description both girls gave of the man they repeatedly

saw go in and out of Kathie’s apartment. (7 RR 213).

Montgomery Kama was the lead detective in the investigation into K athie’s

murder. (6 RR 159). He talked to Appellant while at the Oaks in the courtyard.

While they talked, Kama noticed a large dark, wet stain on the pocket of Appellant’s

jeans and red spots on his shoes, all of which turned out to be Appellant’s blood. (11

RR 218). Kama shined his flashlight on the stain on Appellant’s pocket and inquired

about it. In response, Appellant told Kama that it was “pizza sauce.” (6 RR 173-

174). After Appellant told him the stain on his pants was pizza sauce, Kama inquired

about the spots on his shoes. At that point, Appellant showed Kama a fresh, bleeding

1/4 to 3/8 inch cut on the palm of his left hand. (6 RR 174-175). Appellant told

Kama that he had cut

his hand earlier in the afternoon opening a package. (6 RR

174). Kama had other officers take Appellant to the detectives offices for an

interview.

Lt. Felix Roque and Dib Waldrip, a reserve officer, formally interviewed

Appellant shortly after midnight on Nov ember 18. After the interview was

complete d, they discovered that the audiotape recorder had malfunctioned and not

recorded the inter view. Thus, they re-interviewed Appellant with the recorder

working. (7 RR 140-142). Appellant told Roque and Waldrip about seeing the long

haired man that he had earlier told patrol officers about. However, he told them that,

due to poor lighting, he could not provide a clothing description for the man. (7 RR

155, 185).

After completing the interview, Waldrip looked at Appellant’s clothing. He was

“shocked” to see the amount of blood that was on Appellant’s clothing, particularly

on his back right shoulder. (7 RR 144). Based upon what Appellant had told them,

Waldrip found it “odd as to how did blood get on [Appellant’s] back and that much

blood?” (7 RR 144). Appellant attempted to explain the presence of such a large

a mount of blood on his shoulder by saying that he and Karen Balonis hugged one

another on the balcony. (14 RR 193). He claimed that Karen must have transferred11

Kathie’s blood to his vest during that embrace. Karen Balonis said that Appellant

embraced her sometime after the police began videotaping, but she vehemently

denied hugging him back. (7 RR 103, 16 RR 23). Carolyn Toth claimed to have

seen Karen and Appellant hug 15 to 30 minutes after the police arrived. (12 RR 216,

257).

During the interview, Waldrip and Roque noted that Appellant appeared to have

a bruise or reddened area on the corner of his left eye. Additionally, Waldrip noticed

a 1/8 inch wide, 6-8 inches long scratch down Appellant’s left forearm. Appellant

had no explanation for either injury. (7 RR 145, State’s Exhibit 28e, p. 10).

Wi th regard to the cut on his hand, Appellant told Roque and Waldrip that he

had cut his hand at “lunch time” attempting to open boxes. (State’s Exhibit 28e, page

10). After lunch on November 17, Appellant worked closely with Carolyn Toth

painting and cleaning an apartment for a new tenant. (12 RR 241). Appellant never

commented about having cut himself at lunch time, nor did Toth see any blood or a

cut. (12 RR 243). Later, Appellant revised when he cut his hand, testifying that he

had done so after he had gotten off of work that afternoon. (14 RR 232). Appellant

said that he did not bandage his hand; instead, he pressed it against his jeans to stop

it from bleeding. (14 RR 233). Nobody Appellant interacted with during the

a fternoon and evening of November 17, 1989 saw any blood on his hands or

clothing, nor did they see a cut to his hand. Appellant said that his hand bled inside

of his truck and he used a rag inside the truck to stop the bleeding. (15 RR 49).

However, no blood or bloody rag was found during the search of Appellant’s truck.

(15 RR 49, State’s Exhibits 95, 96, 100).

During the interview with Roque and Waldrip, Appellant recounted his activities

for the day and evening before he ended up in Kathie’s apartment. Appellant told

them that, after getting off work, he had gone to Landa Station, where he worked

part-time, “posted the bills” there, and was back home at his apartment before 7:00

p.m. (7 RR 156, 185, State’s Exhibit 28e, page 4). In fact, after he got off work at

the Oaks, Appellant went to Landa Station at about 6:00 p.m., where he drank at least

four to six tea glasses of wine. (8 RR 66). After that, Appellant went to a bar called

Kings and Queens. While there he played several games of darts with Mark

Blankenbeckler and Pam Bennett. (8 RR 78, 107). Neither Blankenbeckler or

Bennett saw any blood on Appellant’s clothes or hands, or a cut on his hand, nor did

Appellant say or do anything to suggest that he had a cut to his left hand. (8 RR 79,

114-115). After they played darts, Appellant asked Pam Bennett, who was a close

friend of his wife and who had attended their wedding, to sit at a table with him so

that they could talk. Appellant told her that his wife had left him and moved back to

Mississippi. (8 RR 108). Appellant asked Pam to leave the bar and go to Holiday

Inn with him so that they could talk privately. Pam declined, but Appellant persisted12

and continued to ask her to leave with him. (8 RR 109-110). Appellant also told

Pam that he had always liked her and found her pretty and nice. Pam felt that

Appellant was “coming on to her.” (8 RR 111). Eventually, in order to get Appellant

to leave her alone, Pam agreed to meet him at the Holiday Inn the following Sunday

afternoon, although she actually had no intention to do so. (8 RR 111-112). After

Appellant left Kings and Queens, Pam’s date arrived. She immediately commented

to him, “thank God y ou’re here because he’s been bothering me,” referring to

Appellant. (15 RR 191). After Appellant left Kings and Queens, he went back to

Landa Station to “see who was there” at about 9:00 p.m. (14 RR 245). He looked

around the establishment, then left. (8 RR 67). Contrary to what he told Roque and

Waldrip, Appellant actually arrived home around 9:15 p.m. (13 RR 178).

When Appellant got home on the night of November 17, his step-son and his

wife, Raymond and Mari e Powell, were in his apartment watching B ack to the

Future

. Appellant told Roque and Waldrip that they left and went home “when the

movie was over.” (State’s Exhibit 28e, page 4). As set forth above, the movie itself

was over shortly before 9:30 p.m. (7 RR 84). While they were in the courtyard that

night, Appellant told Carolyn Toth that the Powells had gone home at 9:30 p.m. (12

RR 271, 13 RR 20). Nonetheless, Appellant, Raymond Powell, and Marie Powell

all testified that they did not leave Appellant’s apartment until after 10:00 p.m. (13

RR 182, 222, 14 RR 176). Thus, Appellant contended that he had an alibi for

Kathie’s murder. Raymond and Marie Powell both testified that they did not arrive

home until just before 10:30 p.m. (13 RR 198, 222). Both said that they stopped at

a store on the way home and bought two beers. (13 RR 197, 234). They said that

when they got home, Raymond turned on the television and sat down and watched

a wrestling program until it was over. (13 RR 183, 235). He said that while he

watched it, he had time to brink both of the beers he had just bought. (13 RR 198).

However, the local television guide for November 17, 1989 listed the only wrestling

program that aired that night as running from 9:15 to 10:15 p.m. (State’s Exhibit

125, 125a, 13 RR 207). Thus, in fact, Powell could not have gotten home at 10:30

and still watch wrestling; whereas, if he left Appellant’s apartment at 9:30 p.m., he

would have had time to watch the program as he said he did.

Raymond Barr test ified that he had seen a man in a white t-shirt with stringy

long black hair go up to Kathie’s apartment between 4:00 and 5 :00 p.m. on

November 17, 1989. (13 RR 161-162). Jessica Brugmann testified that she heard

water running in Kathie’s bathtub between 4:00 and 5:00 p.m. on November 17.

However, in another statement, Barr had mentioned that on the day he saw the man

go up to Kathie’s apartment, Appellant and Raymond Powell had been barbequing

in the courtyard at the Oaks. (15 RR 217-218). Appellant and Raymond Powell did

not barbeque on November 17, 1989. (15 RR 78). Additionally, because they had

common plumbing, one could hear water running in Marci French’s bathtub while13

in Jessica Brugmann’s apartment just as if it were running in Kathie’s apartment. (11

RR 143). After Marci picked Shelly Flynn up at the airport, they went to Marci’s

apart ment and immediately gave Shelly’s young son a bath. That occurred around

5:00 p.m. on November 17. (8 RR 189-190).

After Roque and Waldrip concluded their second interview with Appellant, he

was taken back to his apartment so that he could change clothes. All of his clothing,

with the exception of his shoes and underwear, were collected by New Braun fels

Police Department. Thereafter, Appellant was taken back to the police department

for fingerprinting. A palmprint was made of his left hand, which clearly showed the

bleeding wound to his palm. (State’s Exhibit 10). Afterwards, Appellant was

arrested for the murder of Kathie Balonis. (6 RR 180). Upon his arrest, Appellant’s

shoes and underwear were seized. (9 RR 194).

In spite of the fact that Appellant was charged with Kathie’s murder,

investigators continued to inve stigate his claim of having seen a long haired man

leave her apartment. Detective Kama verified the whereabouts of Kathie’s boyfriend,

Gary Moczygemba, as well as her former husband and quickly eliminated them as

suspects. (6 RR 192). Additionally, detectives investigated the whereabouts of Ross

Risz. He was young man who Kathie had briefly dated who had shoulder-length dark

hair and had once driven a burnt orange colored Vega. (15 RR 248). On November

20, 1989, Detective Kama interviewe d Risz as well as some of his acquaintances.

(6 RR 188-189). Risz was at a bar in Seguin on the night of Kathie’s murder. (15

RR 243, 250). Additionally, Risz had sold his Vega in 1985. (15 RR 251, State’s

Exhibit 16). Nonetheless, Kama located the car on November 19, 1989 and found

it to be inoperable. (6 RR 191, State’s Exhibits 13, 14, 15).

At some point after Appellant’s arrest, it was learned that Kathie had been

making phone calls to a bar in San Antonio. (CRSH 5). In 1991, Toth, Simms,

Brugmann, and an investigator who was working for Appellant went to that bar. (13

RR 28-29, 14 RR 129). Simms identified an employee of the bar, Richard Eppley

as a man who had dated Kathie and who drove a dark orange Vega-like car. (14 RR

130). In fact, Simms identified a car outside of the restaurant as the one she had seen

speeding away

from the Oaks on November 17, 1989. (14 RR 128, 134, State’s

Exhibit 135). However, Kathie was actually calling the bar to talk to an old high

school friend, who was the manager. (15 RR 259-260). In fact, Richard Eppley had

never met Kathie Balonis. (15 RR 269). Additionally, Richard Eppley was in

Atlanta, George October through December 1 989 installing security systems. (15 RR

268, 278). Finally, the car depicted in State’s Exhibit 135 that Doris Simms said was

the car she saw speeding from the Oaks on November 17 was not owned by Richard

Eppley, but by another employee of the bar. That employee did not even purchase

the car until after Kathie Balonis was murdered. (16 RR 6, State’s Exhibit 138).14 STATEMENT OF FACTS RELATING TO

PHYSICAL AND FORENSIC EVIDENCE

Mario Guerrero was a detective with the New Braunfels Police Department and

was in charge of collecting and maintaining physical evidence. (9 RR 181). As such,

he collected all of the physical evidence in the instant case. Guerrero placed each

item he collected into a separate bag. (9 RR 188). As the New Braunfels Police

Department did not have an ev idence vault in 1989, Guerrero stored all of the

evidence in his locked office. (9RR 189).

While processing the scene of Kathie’s apart ment, Guerrero noticed several hairs

in Kathie’s hands. Thus, Guerrero instructed officers to videotape the hairs.

Additionally, consistent with his training at the time, Guerrero taped brown paper

bags over Kathie’s hands in order to preserve the hairs. (9 RR 191). Those hairs

were not long and dark, as one would expect them to be if Appellant’s story were

true, but were light brown in color, like Appellant’s hair. (10 RR 102).

Kathie’s body was transported to the Travis County Medical Examiner’s Office

for autopsy. Dr. Roberto Bayardo performed an autopsy on her body the morning of

November 18. Dr. Bayardo noted that Kathie had a small cut on the middle finger

of her left hand, which he characterized as a “defensive wound.” (10 RR 153, State’s

Exhibit 111). That wound was inflicted prior to Kathie’s death. (10 RR 153). Dr.

Bayardo determined that Kathie was strangled to death, both manually and w i th a

ligature. The cord from the iron found in her bedroom was a “perfect match” to the

injuries on her neck. (10 RR 157-159). Dr. Bayardo found several superficial

scratches to K athie’s breasts, two three inch deep puncture type wounds to her

abdomen, and a stab wound to her labia. Those injuries were all inflicted after

Kathie’s death. (10 RR 154, 156, 159). Dr. Bayardo found the stabbing injuries to

Kathie’s body to be consistent with having bee n inflicted by a pocketknife. Three

witnesses on behalf of the State testified that Appellant regularly wore a pocketknife

in a leather pouch on his belt while he was the maintenance man at the Oaks. (8 RR

63, 142, 163).

Upon seeing Appellant’s left palm print with the cut to it, Dr. Bayardo

chara cterized the cut as a “fresh wound.” (10 RR 174). He said that it would be

unusual for one to bleed substantially twelve hours after such a wound was inflicted.

(10 RR 175). Additionally, if one were to re-open such a 12 hour old wound, mostly

blood serum, not whole blood would come out. (10 RR 213).

Mario Guerrero and Montgomery Kama attended Kathie’s autopsy. However,

they were late and, by the time they got there, Dr. Bayardo had already begun. (6 RR

182-183, 9 RR 196). Prior to their arrival, Dr. Bayardo had removed the bags from15

Kathie’s hands and, seeing nothing in them, threw them away. (10 RR 151). Neither

Guerrero or Kama said anything to Dr. Bayardo about the hairs that had been in

Kathie’s hands. (6 RR 184, 9 RR 198). Thus, those hairs were apparently thrown

away with the bags. (3 RR 158).

During autopsy, Dr. Bayardo drew Kathie’s blood. He placed the blood in a tube

that did not contain any preservative to keep the blood from degrading. (10 RR 164).

Additionally, he collected several swabs from Kathie’s body during the “rape kit”

examination. (10 RR 162). After autopsy, Dr. Bayardo turned over the blood and

“rape kit” to Guer rero. He turned over Kathie’s clothes to the funeral home, from

whom Guerrero then collected them. (9 RR 199, 10 RR 164).

On November 28, 1989, Guerrero took all of the evidence to the Bexar County

Forensic Sciences Center (BCFSC) for forensic analysis. (3 RR 16). Guerrero took

a dditional evidence to the BCFSC as it was obtained. On December 1, 1989,

Guerrero turned over Appellant’s known blood sample to the laboratory. (3 RR 17).

On December 6, 11, 18, 1989 he took additional items to the BCFSC for analysis.

(3 RR 17-18). On February 21, 1990, Guerrero took several items of evidence back

to the laboratory for additional analysis. (3 RR 18, Defendant’s Pretrial Exhibit E).

Each time he took evidence to the lab, Guerrero turned it over to Fred Zain, who was

the Chief of Forensic Evidence. Zain had been hired in January 1989 and had

previously been employed as a forensic serologist with th e West Virginia State Police

for 13 years. (12 1stRR 2083).

Fred Zain testif

ied several times on behalf of the State at Appellant’s original

trial. Zain testified that he had conducted DNA analysis on numerous blood stains

and samples. He testified in particular, that DNA analysis revealed that the largest

blood stain on Kathie’s carpet, which had been located underneath her body,

originated from Appellant, as did a smaller stain close to Kathie’s body. (12 1st RR

2134-2135). Zain testified that one of the four distinct bloodstains on a blue

pillowcase from Kathie’s apartment was Kathie’s blood. (12 1stRR 2132-2133).

Zain also testified that a

small bloodstains on the neck of Kathie’s pink turtleneck

shirt was that of Appellan t. (12 1stRR 2123-2125). This result was not contained

in any report that Zain submitted pertaining to the instant case. He characterized its

absence as an “oversight” due to his numbering system. (12 1stRR 2140-2141,

2465). Zain also testified that he used Kathie’s blood sample obtained at autopsy as

her known sample for comparison purposes. (12 1stRR 2086).

During civil litigation subsequent to Appellant’s first trial, it was revealed that,

in fact, Henry Hollyday, not Fred Zain conducted all of the DNA testing in

Appellant’s case. (1 RRSH 38, 115, 10 RR 116, 129). Hollyday’s DNA results from

the large bloodstain on the rectangular shaped carpet cutout were actually16

inconc lusive, but was more consistent with Kathie’s blood than Appellant’s. (1

RRSH 120). Hollyday actually did no testing on the small bloodstain on the irregular

carpet cutout. (1 RRSH 123). Finally, it was revealed that, in fact, Dr. Bayardo had

placed Kathie’s autopsy blood sample in a container with no preservative. (1 RRSH

131). Hollyday examined the blood, was visually able to determine that it was too

degraded to use, and, thus, it was destroyed. (3 RR 94, 10 RR 118). Therefore, Zain

instructed Hollyday to take a cutting off of Kathie’s pink turtleneck shirt and use that

as her known sample. (1 RRSH 132-133). Fred Zain was called to testify at

Appellant’s habeas corpus proceeding. When he was confronted with his apparent

perjury, Zain invoked his right against self incrimination. (2 RRSH 423).

At state habeas, the trial court issued findings of fact and conclusions of law that

included the conclusion “that it is highly p robable that Fred Zain committed

aggravated perjury” during Appellant’s original criminal trial. (Supp. CRSH 3).

Further, the trial court concluded that “Z ain’s conduct was intentional and outrageous

and shocked the conscience of the court.” (Supp. CRSH 2). However, the trial court

did not find that Fred Zain tampered with, or altered any of the physical evidence or

biological stains that were submitted to him.

Subsequent to Zain’s testimony at Appellant’s original trial, questions arose

regarding irregularities in Zain’s wo rk in both Texas and West Virginia. Officials

became concerned that Zain was not backing up his work with proper documentation

and may not have been doing the testing at all. (3 RRSH 6). As a result, several

investigations and audits were conducted in both states. The Southwest Institute of

Forensic Sciences (SWIFS) in Dallas reviewed Fred Zain’s casew ork in Bexar

County and issued a report on July 15, 1993. The report reflected that the BCFSC

maintained inadequate record in a variety of areas, had insufficient quality controls,

had unacce ptable record keeping practices, often wrote reports that overstated the

power of DNA and serology results, and maintained physical evidence in a confusing

and inadequate way. (Defendant’s Pretrial Exhibit I, 3 RRSH 17). Dr. Irving Stone,

the author of the report, testified at Appellant’s state habeas proceeding regarding his

findings. He was of the opinion that any test results Fred Zain reported were suspect

and any testing “ ought to be repeated .” (3 RRSH 34). At no time in either his

testimony or h is report did Dr. Stone indicate that he found any evidence or

suggestion that Fred Zain ever planted or fabricated physical evidence.

The Federal Bure au of Investigation (FBI) also conducted a review of DNA

testing procedures and resu lts of BCFSC and issued reports on July 19, 1994 and

February 13, 1995. (Defendant’s Pretrial Exhibit C and D). The FBI concluded that

quality controls, case note documentation, sample labeling, statistical evaluation, and

second reviews were all inadequate. Consequently, the FBI concluded, these

deficiencies made it difficult to have complete confidenc e in the BCFSC DNA17

results. The reports went on to list deficiencies in a number of specific cases. The

July 19, 1994 report listed the following regarding the instant case:

The review of this cas e discovered a number of discrepancies. For

example, carpet sample number 26 was supposedly mislabeled as

sample number 20 in the case notes and autoradiogra phs. Sizing

determinations for the human DNA control were clearl y out of

bounds, ma king further analysis with these results inappropriate.

Finally, no DNA profile results were obtained for the pillow case

sample number 2 as indicat e d in the June 1, 1993 report.

(Defendant’s Pretrial Exhibit C, p. 3).

In listing the inadequacies in individual cases, the FBI never documented in any

case any concerns that physical evidence may have been planted or fabricated by Fred

Zain.

Fred Zain was also investiga t ed in West Virginia. [At habeas corpus

proceedings], the trial court has taken judicial notice of the report of the West

Virginia investigation, as found in In the Matter of an Inves tigation of the West

Virginia State Police Crime Laboratory Serology Division

, 438 S.E.2d 501 (W.Va.

1993). That report sets out findings that Fred Zain overstated the strength of results

and freq uency of genetic matches, reported inconclusive results as conclusive, altered

laboratory records, failed to report con flicting results or conduct additional testing

to resolve conflicts, and reported scientifically impossibl e or improbable results,

among other things. I

d

. at 516. However, any allegation that Fred Zain fabricated,

planted, or altered physical evidence is conspicuously absent from the West Virginia

report. In fact, the report notes that two of Zain’s fellow serologists testified that

“Zain did not, as far as they knew, fabricate evidence.” Id . at 512, n.13.

In preparation of Appellant’s second trial, the State enlisted the assistance of Mr.

Tom Bevel, a crime scene reconstruction bloodstain pattern analyst from Oklahoma

an d LabCorp, a private laboratory in North Carolina. (10 RR 222, 225). On

December 28, 2000, Bevel traveled to New Brau nfels and inspected all of the

physical evidence in 2 001. (12 RR 18, 108). He noted a number of small

bloodstains that had apparently never been circled, cut from, or analyzed in any way

by anyone at BCFSC. (12 RR 20). Thereafter, the State sent all of the physical

evidence via Federal Express to LabCorp. Upon its arrival, the State’s investigator

traveled to the laboratory to be present for the lab personnel’s inspection of it. (10

RR 227). LabCorp personnel examined each individual item of evidence over a two

day period and took approximately 60 new cutti ngs from the bloodstains that

remained on the evidence and subjected them to DNA analysis. (11 RR 193). A

number of those cuttings came from bloodstains that had not previously been circled18

or cut from by Fred Zain. Those stains were of particular significance to lab

personnel, since it would not have made sense for Zain to have planted blood then

not test the stains. (10 RR 231). Although cuttings made by Fred Zain were included

in the submission to LabCorp, they did no forensic analysis on any of them in order

not to have to rely on any of his work. (10 RR 230).

Because the blood from Kathie’s autopsy was degraded and was consequently

destroyed, LabCorp personnel conducted DNA analysis on the vaginal and oral

swabs from her rape kit and used them as her known sample. (10 RR 236, 11 RR

194). In March, 2001, the State executed a search warrant upon Appellant to obtain

a sample of his saliva to be used as his known sample for DNA analysis. (10 RR

237).

LabCorp’s DNA analysts were able to de termine whether a number of stains

originated from Appellant or Kathie. There were three drops of Appellant’s blood

present on Kathie’s doorjamb and a number of small drops on a blue floormat just

outside of her front

door. (11 RR 227, State’s Exhibits 42, 43, 83). Additionally,

there was a small spot of Appellant’s blood on a mat just inside of Kathie’s door. (11

RR 207, State’ s Exhibits 4, 84, 85, 86). Appellant’s blood was also present on at

least three of four distinct and sep arate bloodstains on a blue pillowcase from

Kathie’s bed. (11 RR 230). Contrary to Zain’s prior testimony, the small bloodstain

on the neck of Kathie’s turtleneck, as well as the large bloodstain on the carpet, were

both consistent with Kathie, not Appellant. (11 RR 212, 213-215). A small stain of

Kathie’s blood was present on the right leg of Appellant’s jeans. (11 RR 219).

Additionally, an extremely small stain o f Kathie’s blood was on Appellant’s right

shirt sleeve. (11 RR 211). A much larger stain of Kathie’s blood was located on the

back right shoulder of Appellant’s blue vest. (11 RR 216-217). None of Appellant’s

blood was around the back shoulders or armpits of Kathie’s clothing. (11 RR 42).

There w as no blood on the sweatshirt Karen Balonis was wearing when she

attempted to help her sister. (11 RR 61). Microscopic and DNA analysis revealed

that Appellant had ejaculated in the underwear h e was wearing on the night of

November 17, 1989. (11 RR 223-224).

Tom Bevel found that the bloodstain patterns he examined were inconsistent

with Appellant’s story. (12 RR 50). Specifically, Appellant’s story of having entered

Kathie’s apartment with a bleeding hand was inconsistent with his bloodstains on her

floormats and doorjamb. Bevel testified that the most probable scenario is that his

blood trail originated inside Kathie’s apartment rather than outside. In other words,

Appellant bled on the way out of Kathie’s apartment, not on the way in. (12 RR 28-

29). Additionally, Bevel found that the absence of Appellant’s blood on the back of

Kathie’s sweater was inconsistent with his story of having placed his bleeding hand

underneath her and lifting her up. (12 RR 34-35). Bevel found that the tiny stain of5 Fred Zain was not called as a witness by either party in the instant case. Both parties

agreed that Zain would take the “Fifth Amendment” and not testify if called based on his claim of

th e privilege against self-incrimination in the habeas corpus proceedings. S ee Davis II

. At

appellant’s request, the trial court instructed the jury in the court’s charge:

You are instructed that F red Zain testified in prior proceedings in this case.

Subsequently, he was called as a witness and asserted his right to remain silent

under the Fifth Amendment.

19 Kathie’s blood on Appellant’s shirt sleeve was applied with a significant amount of

force, essentially, that it flew through the air. (11 RR 37-40).

Bevel concluded tha t the most likely source of the blood on Appellant’s right

shoulder was Kathie’s bleeding finger being placed directly upon the vest. (12 RR

45). He testified that Appellant’s exculpatory story that he got Kathie’s blood on his

shoulder during a hug with Karen Balonis was only possible if she would have gotten

a high volume of blood on her hands and then touched his shoulders within just a few

moments of it getting on her hands. (12 RR 43). As set forth above, if a hug

occurred, it was at least 15 to 30 minutes after the police arrived. Bevel testified that

if Karen had blood on her hands and if she touched Appellant’s shoulder 15 minutes

after ha ving gotten it on there, it would not have even left a stain. (12 RR 43).

Finally, Bevel testified that if Karen had the volume of blood on her hands required

to leave such a stain on Appellant’s shoulder, it would have been very obvious that

she had blood on her hands. (12 RR 44-45).

Authentication of Evidence

We begin with appellant’s first point of error as st a ted: “Trial court erred in

overruling appellant’s objection to the evidence taken from the apartment of Kathy Balonis and from

appellant based on the inability to authenticate the manner in which the evidence was handled

without testimony from Fred Zain? [sic]” 5

The point of error stands alone, unadorned with a description of the items involved

and without a record reference as to where the evidence was introduced, or a description of the20

“objection” to the evidence. There is no separate argument or authority advanced for point of error

one. See Tex. R. App. P. 38.1(h). Nothing appears to be presented for review.

Under the general “Arguments and Authorities,” we find a subdivision “A. The

Chain of Custody.” Appellant may have intended to brief his first contention here although the first

point of error is not mentioned. Appellant states:

Under the facts of the instant case, the Stat e failed to authenticate four items,

specifically blood stains on the complainant’s sweater, a pillowcase, appellant’s blue

jeans and his shirt. The trial court erred in admitting evidence of those stains because

the State failed to prove through a chain of custody that the items had not been

altered even though there was evidence that either the stains were not on the evidence

at the time it was seized or that the State’s expert could not explain how the stains

got on the evidence.

If these were the items to which appellant had reference in the first point of error, we

still are not told where in this voluminous record these items were introduced into evidence and what

objections were levied against their offer at the time or how error was preserved as to these particular

items. The exhibit numbers are not even mentioned as an aid. There has been no compliance with

our briefing rules. S ee Tex. R. App. P. 38. 1(h). The burden is on the appellant to make accurate

references to the record and show that the record supports the contention asserted. A reviewing court

has no duty or required task to search a voluminous record page by page in an attempt to verify an

appellant’s claims. S ee Alvarado v. Stat e , 912 S.W.2d 199, 210 (Tex. Crim. App. 1995); R eed v.

State

, 927 S.W.2d 289, 291 (Tex. App.—Fort Worth 1996, no pet.). Here, there were no references

to relevant record pages, Aldrick v. State

, 928 S.W.2d 558, 560 (Tex. Crim. App. 1990), and no cites

to the record where the objections, if any, were interposed. S ee Lape v. State

, 893 S.W.2d 949, 95321

(Tex. App.—Houston [14th Dist.] 1994, pet. ref’d). The right to appellate review extends only to

complaints made in accordance with the rules of appellate procedure. F oster v. State

, 779 S.W.2d

845, 864 (Tex. Crim. App. 1989). Point of error one is inadequately briefed.

Taking a liberal vie w of the briefing rules, considering the State’s response, and

assuming that appellant did timely and specifically object to the items in question and received

adverse rulings, see Tex. R. App . P. 33.1, we take note of the law applicable to authentication.

Texas Rule of Evidence 901 provides the requirements for authenticating or identifying evidence.

Rule 901 provides in pertinent part:

(a) General Provision. 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 its proponent claims.

(b) Illustrations. By way of illustration only, and not by way of limitation, the

following are examples of authentication or identification conforming with

the requirements of this rule:

(1) Testimony of witness with knowledge

. Testimony that a matter is what

it is claimed to be.

. . .

(4) Distinctive characteristics and the like

. Appearance, contents,

substance, internal patterns, or other distinctive characteristics, taken

in conjunction with circumstances.

Tex. R. Evid. 901.

The Rules of Evidence do not specifical ly address or define the terms “proper

custody” and “chain of custody.” Rule 901(a) makes clear that the authentication or identification

of an item for admissibility purposes is satisfied if the evidence is sufficient to support a finding that22

the item in question is what its proponent claims. K ingsbury v. State

, 14 S.W.3d 405, 407 (Tex.

App.—Waco 2000, no pet.); Silva v. State

, 989 S.W.2d 64, 67-68 (Tex. App.—San Antonio 1998,

pet. ref’d); Simmons v. State

, 944 S.W.2d 11, 12 (Tex. App.—Tyler 1996, no pet.); Garner v. State

,

939 S.W.2d 802, 805 (Tex. App.—Fort Worth 1997, pet. ref’d). Thus, the proof of custody goes to

the weight of the evidence rather than its admissibility. K ingsbury

, 14 S.W.3d at 407. Proof of the

beginning and the end of the chain of custody will support the admission of the evidence in the

absence of any showing of tampering or alteration. S tokes v. State , 788 S.W.2d 1, 10 (Tex. Crim.

App. 1989); Penley v. State

, 2 S.W.3d 534, 537 (Tex. App.—Texarkana 1999, pet. ref’d). Gaps in

theoretical breaches in the chain of custody will not normally affect the admissibility of the evidence.

Lagrove v. State

, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997); Ford v. State

, 26 S.W.3d 669, 674-

75 (Tex. App.—Corpus Christi 2000, no pet.); Porter v. State

, 96 9 S.W.2d 60, 66 (Tex.

App.—Austin 1998, pet. ref’d).

Some of our better-known Texas commentators have stated:

Wh en real evidence is offered, often its condition as well as its identity is

important. When this is so, a proper foundation must include evidence that the item

is in substantially the same condition when presented as at the legally material time,

e.g., the time of the accident, the time of first discovery, etc. G allego v . United

States

, 276 F.2d 914, 917 (9th Cir. 1960). Like identity, continuity of condition can

sometimes be shown by a single witness. If any plausible material change in the

object would be palpable, it suffices that the witness who identifies the object also

testifies that it appears to be in the same condition as when previously perceived by

him. H ammett v. State

, 578 S.W.2d 699, 708 (Tex. Crim. App. 1979). If, on the

other hand, the object is of a nature that admits a risk of material but impalpable

change—such as a chemical o r bodily fluid specimen—then mere assertion by the

identifying witness of the absence of any apparent change in its condition may not

suffice. In such a case, continuity of condition must be established by a chain of

custody. E

asley v. State

, 472 S.W.2d 128, 129 (Tex. Crim. App. 1 9 71); Moore v.

State

, 821 S.W.2d 429, 43 1 (Tex. App.—Waco 1991, no pet.). It is not required,6 Proof of the chain of custody is vital to the admissibility of evidence if its relevant

characteristics are distinguishable only by scientific tests or analyses. Davis I , 831 S.W.2d at 443

(citing Hammett v. State , 578 S.W.2d 699, 708 (Tex. Crim. App. 1979)).

23 however, that all possibility of tampering o r adulteration be eliminated. S alinas v.

State

, 507 S.W.2d 730, 731 (Tex. Crim. App. 1974); Kingsbury v. State

, 14 S.W.3d

405, 407 (Tex. App.—Waco 2000, no pet.) (“Absent evidence of tampering or

commingling, theoretical breaches in the chain of custody do not affect the

admissibility of evidence.”); Garner v. State

, 939 S.W.2d 802, 805 (Tex. App.—Fort

Worth 1997, pet. ref’d).

2A Steven Goode et al., Texas Practice: Courtroom Handbook on Texas Eviden ce § 9.01 (West

2003 ed.); see also Davis I , 831 S.W.2d at 443.

With this backgr ound, we turn to appellant’s complaint that the State failed to

authenticate four items of evidence. There is really no dispute that the victim’s sweater, a

pillowcase, appellant’s jeans and shirt are exactly what the State claims they are. These items were

properly identified and authenticated before being admitted. It is the bloodstains that appellant urges

were not authenticated. 6 Appellant generally contends that the bloodstains cannot be explained by

the State’s blood spatter expert. “For example, Tom Bevel, testified that for the blood to have gotten

on the back of the complainant’s sweater, she had to be picked up and moved about two feet into a

blood smear on the carpet. The sweater did not slide through the blood.” This is appellant’s total

argument that there was no chain of custody established as to the bloodstain on the sweater because

Zain was not called as a witness and because the State failed to show lack of alteration.

The victim was shown to have been wearing a sleeveless sweater over a pullover

turtleneck shirt when she was killed. Both garments were collected by Officer Mario Guerrero after24

Balonis’s autopsy. There was a substantial apparent bloodstain on the white sweater. The stain was

obviously a transfer stain as Kathie Balonis had suffered no wounds to her back. The garments were

transferred to t he Bexar County Forensic Scientific Center. No DNA or serological analysis was

ever performed by Fred Zain or Henry Hollyday on the sweater’s stain. In 2001, LabCorp attempted

to obtain DNA results from the stain but were unsuccessful. However, a bloodstain was located on

the turtleneck shirt directly underneath the large stain on the sweater. DNA testing on the small stain

was consistent with Balonis’s blood and inconsistent with appellant’s blood. This led to a

conclusion that the larger stain on the outer sweater originated with Kathie Balonis. Officer

Guerrero testified that the sweater was in the same form and condition when it was returned from

BCFSC as when it was collected. There was no showing that there was any tampering or alteration

to the sweater. The mere fact that Zain was not available to testify did not require exclusion of the

sweater or its bloodstains. Any gap in the chain of custody goes to the weight. P orter

, 969 S.W.2d

at 67. The trial court did not err in admitting the sweater.

With regard to the other items, appellant states:

Likewise, Bevel conceded, based on descriptions and transcripts from Officer

Felix Roque who described Appellant’s blue jeans the morning of the murder, there

is no evidence that a blood stain was on the leg of the jeans that morning even though

Bevil [sic] later found such a stain. Bevil [sic] also testified that he could not find

pictures of blood drops on a pillowcase in scene photos. Bevil [sic] also was unable

to explain how a single drop (as opposed to several drops) of blood spatter got onto

Appellant’s shirt.

. . .

All of the exhibits had been in Zain’s custody, as well as blood samples from

both the complainant and A ppellant. While there was no question that what

purported to be—for example—Appellant’s blue jeans or the complainant’s sweater,25

the blood evidence had independent significance and required proof that it was in fact

on the item at the time it was seized. Thus, while it might not be necessary to prove

a chain of custody for the pants themselves, it was necessary to show that they had

not been tampered with while in Zain’s custody. Without Zain’s testimony, the State

failed to show that the evidence had not been tampered with.

Officer Guerrero testified that appellant’s blue jeans were in substantially the same

condition as when he s eized them on November 18, 1989. Tom Bevel, the blood spatter expert,

found a small blood stain on the right leg below the knee, close to the inside seam. DNA testing by

LabCorp revealed the blood to be consistent with Kathie Balonis’s DNA and inconsistent with

appellant’s blood. The stain had never been circled or marked by anyone at BCFSC nor had it been

cut from or tested in any way. Bevel noted that the small stain was some distance from the stains

on the jeans described by Officer Roque during appellant’s videotaped interview on November 17,

1989. Appellant argues that the evidence of the bloodstain found by Bevel was inadmissible because

it was not noticed or documented by Roque who was not shown to be a blood detection expert.

Further, there is nothing to show that Zain planted the small inconspicuous spot of blood without

marking it, testing it, or calling attention to the same, hoping that it might be discovered years later.

The trial court did not err in permitting the jury to decide the weight to be given the blood spot

involved.

When Tom Bevel examined the physical evidence, he noticed two bloodstains on the

turtleneck shirt appellant was wearing on the night in question. One was on the left front near the

buttons and the other was on the right shirt sleeve. Bevel photographed both stains before the shirt

was sent to LabCorp for analysis. The DNA analysis showed the stain on the shirt’s left front was

consistent with appellant’s DNA. The stain on the right sleeve was consistent with the blood of26

Kathie Balonis. Neither stain had been tested or cut from by anyone at BCFSC. Bevel concluded

that Kathie’s blood had been applied to the slee ve by some medium velocity force that forced the

blood into the weave of the fabric. Bevel had doubts it had been planted because of the size of the

stain and force involved. Here again, Officer Guerrero testified that the shirt was in substantially the

same condition as it was when he seized it on November 18, 1989. The fact that the blood stain was

not detected until some time later and then by a blood spatter expert goes to the weight the jury may

give to it and not to its admissibility into evidence.

Appellant also refers to the bloodstains on a pillowcase. Several individuals who

were in the apartment shortly after the killing noticed blood on one of the pillowcases. Photographs

and a crime scene videotape reveal a blue pillowcase with two fairly large bloodstains. Both stains

were transfer stains from wiping or brushing. LabCorp’s DNA testing revealed one of the stains was

the blood of appellant. No DNA results were obtained from the other stain.

Two additional but smaller bloodstai ns were found along the opposite seam of the

pillowcase but were not captured by the photogr aphs. Both of these stains were consistent with

appellant’s DNA. One was caused by a blood drip and the other was impacted into the fabric.

Officer Guerrero testified that the p illowcase with the blood stains was in the same condition as

when he took it into custody, before it was given to Fred Zain. The bloody pillow itself was left in

the apartment and was later destroyed by the victim’s parents, who became distressed when they saw

it.

Bevel testified that the two stains not captured in the photographs were probably not

planted because it would be illogical to plant appellant’s blood on an item that already had his blood27

on it. At the first trial, Zain testified that the drip bloodstain on the pillowcase (not visible in the

photographs) originated from Kathie Balonis. This was obviously not true, and it would not make

any sense to plant appellant’s blood on the pillowcase and then testify it was the victim’s.

The record reflects that appellant introduced, without objection, Defense Exhibit 16

which was a photograph of the blue pillowcase with blood stains. The overruling of an objection

to evidence will not result in r eversal when other such evidence was received without objection,

either b efore or after the complained-of ruling. This rule applies whether the evidence was

introduced by the State or the defendant. L eday v. Stat e , 983 S.W.2d 713, 718 (Tex. Crim. App.

1998).

The trial court did not abuse its discretion in admitting into evidence the items

complained-of and the accompanying bloodstains. The first point of error is without merit for all

the reasons stated.

State’s Second Motion in Limine

In his second point of error, appellant asserts that the “trial court erred in granting the

State’s motion in limine and prohibited appellant evidence concerning th e manner in which Fred

Zain handled evidence in other cases to show that the State could n ot properly authenticate the

physical evidence presented? [sic].”

Appellant’s brief contains no “argument and authorities” for this particular point of

error. We find reference to the subject matter in that portion of the brief entitled “Second Trial

Evidence.” No authorities, however, are cited there. Prior to the voir dire examination of the jury

panel, a hearing was conducted on appellant’s motion in limine and then on the State’s first motion28

in limine. During this hearing, appellant interjected the State’s second motion in limine into the

discussion. That motion requested appellant be required to approach the bench before offering any

evidence of “other cases” handled by Fred Zain. The trial court granted this second motion in limine.

Appellant’s counsel sought a clarification of the ruling and was informed that he would have to first

approach the bench before he offered the testimony of Janine Arvizu or others about “other cases.”

The record reflects:

Mr. Schneider [defense counsel]: And so before

-- before I rest, then I would have

to ask permission to do it. And then, if the Court

says no, can I proffer her prior testimony on a bill

on what she would testify instead of flying her in

from New Mexico to testify?

The Court: Yes, you may.

Ms. Tanner [prosecutor]: Okay, back to the first motion. That kind of took

us off to the second.

In claiming that the trial court erred in granti ng the motion in limine, appellant

overlooks the fact that it is axiomatic that motions in limine do not p reserve error, whether the

motion is granted or denied. Wilson v. State

, 7 S.W.2d 136, 144 (Tex. Crim. App. 1999); Webb v.

State

, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988); Harnett v. State

, 38 S.W.3d 6 50, 655 (Tex.

App.—Austin 2000, pet. ref’d); Roise v. State , 7 S.W.3d 225, 240 (Tex. App.—Austin 1999, pet.

ref’d). A ruling on a motion in limine does not purport to be one on the merits but one regarding the

administration of the trial. Harnett , 38 S.W.3d at 655. A traditional motion in limine is a motion

requesting that the opposing party approach the trial court before offering certain types of evidence

or otherwise going into particular areas before the jury. Id

.29 It is clear that appellant has not presented error to this Court for review because the

trial court granted either one or both of the State’s motions. The ruling did not prohibit appellant

from offering evidence about “other cases” handled by Zain. It only required that he first approach

the bench. The second point of error is overruled.

Motion to Suppress

In his third point of error, appellant contends that the “trial court erred in overruling

appellant’s motion to suppress evidence based on the State’s inability to properly authenticate any

physical evidence without the testimony of Fred Zain.”

Appellant’s counsel filed a pretrial motion “to suppress all physical evidence which

at any time and which in any way was in the hands of the Bexar County Medical Examiner’s Office

or Fred Zain.

. . . The general basis for this motion is that under the facts of this case, in the absence

of evidence of a chain of custody, any [sic] the State cannot authenticate any evide nce which was

ever in the possession of Fred Zain.” Appellant based his suppression motion on the due process and

due course of law provisions of the federal and state constitutions. U.S. Const. amend. XIV; Tex.

Const. art. I, §§ 13, 19; see also Tex. R. Evid. 401, 901. On March 29, 2001, some six months prior

to trial, the trial court heard and overruled the motion to suppress.

In appellant’s brief under “Second Trial—Suppression Hearing,” we find a summary

of some of the evidence presented at the pretrial suppression hearing along with references to some

trial testimony, which was n ot before the trial court at the suppression hearing. No arguments or

authorities are presented. Mere recitation of facts developed at a suppression hearing without

argument or authorities presents nothing for review. Tex. R. App. P. 38.1(h); L awton v. State

, 91330

S.W.2d 542, 554 (Tex. Crim. App. 1995); Smith v. State

, 907 S.W. 2d 522, 531 (Tex. Crim. App.

1995); Garcia v. State , 887 S.W.2d 862, 871 (Tex. Crim. App. 1994) (mere conclusory assertions

insufficient); Lockett v. State

, 16 S.W.3d 504, 505 n.2 (Tex. App.—Houston [1st Dist.], pet. ref’d);

Maldonado v. State

, 902 S.W.2d 708, 711 (Tex. App.—El Paso 1995, no pet.). The State also notes

that appellant did not brief this issue and it did not specifically respond thereto. The third point of

error is overruled. See Louis v. State , 61 S.W.3d 593, 598-99 (Tex. App.—Amarillo 2001, pet.

ref’d).

Fourth Point of Error

In his fourth point of error, appellant contends that the “trial court erred in sustaining

the State’s objection to the testimony of Jeanine [sic] Arvizu regarding the manner in which Fred

Zain handled evidence in other cases.”

The stated point of error is all that we are offered. There is no reference to a record

page number, no further mention of the evidence excluded, or the nature of the objection. No

argument is advanced, no authorities cited. S ee Tex. R. App. P. 38.1(h). We find no reference to

the “fourth issue or point of error” elsewhere in appellant’s brief.

As the complainant on appeal, an appellant has the bu rden to inform us of the

supposed error and explain why it warrants reversal of the judgment. It is not our

obligation to divine or develop issues for him. Nor are we required to blindly peruse

a voluminous record to discover evidentiary support for the issues before us.

Louis , 61 S.W.3d at 598-99.31 Issues raised on appeal but not briefed are in effect abandoned. It is not the task of

a reviewing court to speculate as the nature of an appellant’s legal theory and brief the case for him.

See Alvarado

, 912 S.W.2d at 210. Requiring appellants, even in capital cases, to abide by our

published briefing rules and to make reasonable arguments does not offend traditional notions of fair

play and substantial justice. L add v. State

, 3 S.W.3d 547, 575 (Tex. Crim. App. 1999). The fourth

point of error is overruled.

The State’s Approach

The State observes that the “org anization of appellant’s brief is somewhat confusing.”

For that or other reasons, the State ignores and does not respond to the second, third, and fourth

points of error as stated. The State speculates that appellant’s real complaint in these points of error

is that the trial court erred in excluding evidence pertaining to other cases handled by Fred Zain. The

State then responds with its own interpretation of appellant’s brief.

In discussing the State’s interpretation, we do not retreat from our disposition of the

second, third, and fourth points as advanced by appellant.

To preserve error in the exclusion of evidence, Rule 103(a)(2) [Tex. R. Evid.

103(a)(2)], like the common la w, requires that the substance of the evidence be

shown by offer of proof. . . . Texas courts have consistently held that error in the

exclusion of evidence may not be urged unless the proponent perfected an offer of

proof or bill of exception.

1 Steven Goode et al., Texas Practice: Guide to the Texas Rules of Evidence § 103.3 (3d ed. 2002);

see also Lane v. State

, 861 S.W.2d 899, 903 (Tex. Crim. App. 1993); Hitt v. State

, 53 S.W.2d 697,

708-09 (Tex. App.—Austin 2001, pet. ref’d).32 Thus, in the abs e nce of a bill of exception or offer of proof, there is no basis for

reviewing a contention that the trial court erred in excluding evidence. S ee Stewart v. State

, 686

S.W.2d 118, 122 (Tex. Crim. App. 1984). No error is presented when an appellant does not meet

his burden of

showing the substance of the excluded evidence. H itt

, 53 S.W.3d at 709 (citing

Kapuscinski v. State , 87 S.W.2d 248, 249 (Tex. App.—San Antonio 1994, pet. ref’d)).

Where in this voluminous record was evidence excluded and error properly

preserved? In a portion of appellant’s brief entitled “Second Trial Evidence,” we find that appellant

has quoted six pages of a trial colloquy. There is no record page reference. Our own search and the

State’s brief reveals that this colloquy occurred during the State’s case-in-chief while Missy Wolfe,

a sergeant inves tigator for the Texas Attorney General, was still on direct examination. It was

apparently during the colloquy that the complained-of ruling was made.

Prior to the second trial, Wolfe had traced and gathered evidence inclu ding items

h andled by Zain and other exhibits that Zain had not handled. She had assisted in securing the

services of the blood spatter expert, had forwarded items of evidence to the LabCorp Laboratory in

North Carolina for testing or retesting, had been present during some of the testing, and had

possession of many of the items of evidence at the time of the trial. During her direct examination,

some exhibits were admitted into evidence over objections.

On October 9, 2000, after the jury was excused for the day, a wide-ranging colloquy

initiated by appellant ensued without mention of a motion, objection, or stated purpose. Appellant’s

counsel complained that Zain was unavailable as a witness because of the “Fifth Amendment”; that

he needed to show Zain’s general methodology, how evidence was hand led from 1989 to 1993 in7 The trial court later did instruct the jury in its written charge that Zain had invoked his Fifth

Amendment right to remain silent in a prior proceeding in the case.

33 the Bexar County lab; that by brin ging Janine Arvizu to testify along with her report he could

document Zain’s meth odology; and that he wanted to cross-examine Wolfe about Zain’s

methodology, the handling and commingling of evidence, and criticism of what Zain did with

evidence. The State objected, pointing out that appellant was free on cross-examination or otherwise

to show Zain’s misconduct in the insta nt case (about which there was little dispute), but that

appellant should not be permitted to show what Zain did in other cases in Texas or West Virginia

or to go into reports about other cases. The objection was sustained.

Appellant’s counsel continued to insist that he wanted to establish commingling by

showing Zain’s practice and procedure “in all cases.” Counsel then requested the right to read to the

jury Zain’s testimony from a prior proceeding where Zain invoked the Fifth Amendment. “And if

the Court allows me to do that, that will establish his cred ibility in front of the jury 7 and why this

witness [Missy Wolfe] has

-- is concerned about it.” The State pointed out that Wolfe’s testimony

related only to the instant case and that the door had not been opened to evidence concerning other

cases. Appellant then argued that “404(b) permitted him to offer ‘other conduct on commingling’

and Zain’s past conduct ‘in general.’” The trial court stated: “The ruling will be - - will be limited

to this case.” It is not clear whether the ruling was limited to the cross-examination of Wolfe or was34

a general one. Counsel continued his remarks to the trial court that Zain’s methodology could be

shown by what Zain did in other cases. The record reflects:

And we can do that with one witness

-- you have heard the witness -- and one

analysis of all the records. And that’s irrefutable what Fred Zain had done. And I’m

just making the argument, I understand the court’s ruling and, as part of my bill I

would offer Janine Arvizu’s testimony from

-- I ask the Court

-- I guess now my bill

would be her testimony.

The Court: We can include that as part of the record.

Mr. Schneider:

-- as what I would want to include before th is jury and to use for

cross-examin ation purposes with this -- with this witness [Missy

Wolfe].

The Court: The request is denied.

The next day the direct and cross-examinatio n of Wolfe continued without further

reference to the subject matter discussed above. Did the trial court err in excluding the evidence

given the circumstances and the offer of proof?

Appellant has made no effort on appeal to show that Arvizu’s testimony supports the

claim the State believes he now advances. Any misconduct on the part of Zain in other cases which

indicated that he was also guilty of misconduct in the instant case (mislabeling evidence, perjury,

lack of reporting, or reporting without results) is not relevant where t he evidence before the jury

revealed that he was guilty of that misconduct in the instant case. The State did not rely upon Zain’s

past testimony or tests. In fact, the State disowned Zain.

Moreover, even if appell a nt was entitled to show what Zain did in other cases, the

offer of proof was not sufficient to establish that. Arvizu’s only testimony was at the suppression35

hearing. She testified that she was a laboratory quality control consultant with Consolidated

Technical Services, Inc., of New Mexico; and tha t she was not in the medical field and was not a

DNA analyst or a serologist. There was nothing to show that she had any personal knowledge of any

case handled by Zain. Arvizu testified that about two years before the suppression hearing, while

in the offices of the Texas Lawyer magazine, she had access to nineteen boxes of records from the

Bexar County Medical Examiner’s Laboratory produced in a civil suit [unidentified]; that she made

“a very short review” of those records and produced a report for appellant’s counsel. The report was

marked and introduced as exhibit “N” at the suppression hearing. The exhibit is not in the record.

The court reporter’s notes reflect that exhibit N was “retained by counsel.”

Arvizu testified that later in January 200 1 she reviewed these same records from a

civil suit and other documents for one hundred hours in a law firm in San Antonio. Arvizu admitted

that she had never visited the Bexar County laboratory involved and had not talked to its personnel.

There is nothing to show that she checked the laboratory records against the records she examined.

Arvizu related that she was not specifically looking for evidence of contamination but was trying to

get a systematic overview of Zain’s work, to get a sense of the nature of his work and the reliability

and the validity of his reported results.

Arvizu acknowledged that she reviewed the FBI and Dr. Irving Stone’s reports on the

Bexar County Laboratory which were critical of Zain’s work but agreed that these reports did not

show that Zain had planted blood on items in cases either in Texas or West Virginia; these reports

showed that there had been retesting on items earlier tested by Zain and generally the same results

were obtained, and there was no concrete evidence in t he instant case that any of the physical36

evidence was contaminated. Arvizu’s opinion was that Zain routinely reported results that were not

scientifically supported; that his career in forensic science “is a compelling story of fraud”; that the

“results in this case were susceptible to the same kind of practice.”

The admission and exclusion of evidence is committed to the sound discretion of the

trial court. Tex. R. Evid. 104; F oster v. State

, 909 S.W.2d 86, 88 (Tex. App.—Houston [14th Dist.]

1995, pet. ref’d); Easter v. State

, 867 S.W.2d 929, 938-39 (Tex. App.—Waco 1993, pet. ref’d). The

determination of whether the evidence is relevant lies within the discretion of the trial court.

Johnson v. State

, 698 S.W.2d 154, 160 (Tex. Crim. App. 1985). Error does not occur unless there

is an abuse of discretion by the trial court. W erner v. State

, 711 S.W.2d 639, 643 (Tex. Crim. App.

1986). That is the standard of review. G reen v. Sta te , 934 S.W.2d 92, 101-02 (Tex. Crim. App.

1996); Reed v. State , 59 S.W.3d 278, 280 (Tex. App.—Fort Worth 2001, pet. ref’d). A reviewing

court is not to substitute its own percep tion of relevance when there is a zone of reasonable

disagreement. Roy v. State

, 997 S.W.2d 863, 867 (Tex. App.—Fort Worth 1999, pet. ref’d). The

appropriate inquiry is whether the trial court acted without reference to any guiding rules and

principles. M

cKinney v. State

, 59 S.W.2d 304, 311 (Tex. App.—Fort Worth 2001, pet. ref’d). We

conclude that the trial court did not abuse its discretion in excluding the evidence offered by

appellant under the circumstances presented.

Texas Rules of Evidence 403 and 404

In appellant’s brief, there is a discussion entitled “Texas Rules of Evidence 403 and

404” under “Argument and Authorities.” It is not a stated issue or point of error. Here, appellant

urges that evidence pertaining to Zain’s conduct in other cases was admissible under Rules 403 and37

404(b). Appellant contends that while Rule 404(b) is most commonly relied upon by the State in

introducing extraneous offenses against an accused, it applies equally to extraneous offenses the

defense seeks to introduce against another person. S ee Mozon v. State

, 991 S.W.2d 841, 846 (Tex.

Crim. App. 1999); Tate v. State

, 981 S.W.2d 189, 192 (Tex. Crim. App. 1998). Appellant urges that

the “application of Rule[s] 403 and 404(b) must be viewed in the context of the ability of an accused

to present a defense.” He contends that the evidence he sought to introduce was admissible under

the “doctr ine of chances.” S ee Plante v. State

, 692 S.W.2d 487, 491-92 (Tex. Crim. App. 1985),

even though Zain was not a witness, a victim, or a party.

In response , the State argues that if Zain committed misconduct in other cases in

Texas or West Virginia, that was not relevant to any material fact in the in stant case other than

Zain’s character. S ee Morrow v. State

, 735 S.W.3d 907, 909 (Tex. App.—Ho uston [14th Dist.]

1987, no pet.). Moreover, even if relevant, evidence of other misconduct is not admissible to prove

Zain’s character in order to show that he acted in conformity therewith in the instant case. Tex. R.

Evid. 404(b). Of course, wrongs, bad acts, and extraneous offenses may be admissible for a purpose

other than character conformity as an exception to Rule 404(b)’s prohibition in order to show

“m otive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” I

d

. The mere introduction of evidence for a proper purpose other than character

conformity does not, by itself, make the evidence admissible. The wrong, bad act, or extraneous

offense must be relevant to a fact of consequence in the case. R ankin v. State

, 974 S.W.2d 707, 709

(Tex. Crim. App. 1996); Owens v. State , 827 S.W.2d 911, 914 (Tex. Crim. App. 1992).38 With regard to the “doctrine of chances,” the State argues that this doctrine is

logically applicable only when “intent” to do a bad act is at issue. P lante

, 692 S.W.2d at 491-92 n.7.

The prosecution contends that Zain’s intent to do a bad act in this case—to lie and misrepresent the

evidence—was not a contested issue. The State never excused Zain’s misconduct in the instant case

or contended that there was a mistake or oversight. Since the State did not dispute that Zain had

previously lied and misrepresented evidence, the prosecution contends that appellant could have had

only one reason for attempting to introduce evidence pertaining to Zain’s conduct in other cases: to

show that Zain acted in conformity with his bad characte r in this case which would be improper.

Tex. R. Evid. 404(b); Montgomery v. State

, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (op. on

reh’g).

The State’s analysis is persuasive. Even if this were not true, appellant has made no

effort to show that the trial court erred in this lengthy trial by excluding the evidence on the basis of

Rule 403. This rule provides: “Although relevant, evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the

jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex.

R. Evid. 403.

In his brief on “Rules 403 and 404,” appellant has not pointed out where in the record

he sought to introduce the evidence in question on the basis of both Rules 403 and 404(b), where the

evidence was excluded, or where he perfected his bill of exception or offer of proof. This briefing

is not in compliance with our briefing rules. Tex. R. App. P. 38.1(h). Undoubtedly, appellant relies

upon the lengthy colloquy discussed earlier where he mentioned “404(b)” and received: “The ruling39

will be

- - will be limited to this case.” If appellant relies upon the same Arvizu bill of exception to

preserve error, it is still meritless in this situation. Appellant’s “Rules 403 and 404” contention is

denied.

Habit

Here again, under “Argument and Authorities,” appellant contends that the “trial court

also erred in excluding evidence of Zain’s continual mishandling of evidence.” Appellant relies

upon Texas Rule of Evidence 406 which provides:

Evidence of the habit of a person or of the routine practice of an organization,

whether corroborated or not and regardless of th e presence of eyewitnesses, is

relevant to prove that the conduct of the person or organization on a particular

occasion was in conformity with the habit or routine practice.

Tex. R. Evid. 406.

The State is correct in pointing out that this contention, not tied to any point of error,

was not preserved for review. We do not find where any evidence was excluded after being offered

on the basis of Rule 406. Appellant does not call our attention to any such ruling or its location in

the record or to any objecti on made. We will not address the contention which is inadequately

briefed. Moreover, a legal theory on appeal must comport with a trial objection and adverse ruling

in the court below. See Rezac v. State , 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). No error is

presented.40 The judgment is affirmed.

__________________________________________

John F. Onion, Jr., Justice

Before Justices Kidd, B. A. Smith and Onion *

Affirmed

Filed: August 14, 2003

Do Not Publish

* Before John F. Onion, Jr., Presiding Jud ge (retired), Court of Criminal Appeals, sitting by

assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).