NO. 07-02-0255 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A NOVEM BER 24, 2003

______________________________ BILLY J. SKIPPER , APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE137 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2001-435438; HON ORABLECECIL P URYEA R, JUDGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPB ELL, JJ.
MEM ORAN DUM OP INI ON Billy J. Ski pper chal lenges hi s convicti on for aggrava ted sexual assaul t. He presents tw

o issues, challenging the trial court’s adm ission of scientific evidence and its failure to prevent im proper jury argum ents by the prosecutor. Finding no reversible e rror, we affi rm.2

Appellant does not chall enge the suffi ciency of the evidence so w e review only the facts necessary to a discus sion of the issues raised. In 1999 , a ppellant was m arried to Jac kie Skipper and the couple l ived in his h ouse with Jac kie’s daughter Rebecca. In August2000, a doctor

told Jacki e that Rebecca was pregnant. After qu estioni ng, Rebecca related that shortly before her 12 th birthday in Decem ber 1999, she w as hom e alone with appellant, who had b een drin kin g, a nd t hat he h ad com e into he r ro omand sexually assaulted her.
Law enforcem ent aut horities w ere notified and conducted i nterviews with Rebecca and Jackie. Rebecca ga ve birth on October 9, 2000. In Novem ber 2000, appellant volu nta rily

provided a DNA sam ple for compariso n with sam ples from Rebecca and her child. The sam ples were taken in Lubboc k and tested in a Dallas laboratory. Based on the results of tho se tests, appellant was indicted for the felony offense of aggravated sex ual
ass ault in J anu ary

200 1. T rial w

as to a j ury

in April 2002, at which the j ury found appellant guilty and assessed punishm ent at life imprisonm ent and a $10,000 fine. Appella nt’s first issue assigns error to the trial court’s overruling his objec tion to the introduction of

the oral swabs use d to collect the DNA ev idence. He cites as authority the discussion in Jacksonv. State , 17 S.W .3d 664 (Tex.Crim.App. 2000), i n which the Co urt of Criminal Appeals m ade reference to its holding in Hollowell v. State , 571 S.W.2d 179 (Tex.Crim .App. 1978), that ev idence w illfully withheld f rom disclosureunder a discover y order should be excluded from the trial. Jackson , 17 S.W.3d at 673.3

We initi all y no te a ppe llant ’sbrie f co nta ins n o citatio n totherecord w her e his discover yrequest appears. SeeTex.R.A pp.Proc. 38.1(h). O ur exam ination of

the record
rev ealsa discovery m otion requesting production of twenty-three num bered categories of items. None of the item s express ly seek production of DNA sam ples or

the m aterials used to collect cell samples for testing.
The record reflects that appellant’s discovery m otion was heard by the trial court

at
a pretrial hearing in October 2001. At the hearing, the prosec utor noted her office had an open file pol icy and de fe ns e c ou ns el ha d a co py “o f e ve ry th i ng th at I h av e i n my possession right now .” She al so sta te d “ I b el ie ve th er e’ s DN A re su lt s i n t hi s ca se , a nd we do have those in th e file as well, and we’ll make those av ailable to defense counsel.” Foll owing the prosecutor ’s rem arks, t he trial cour tstated, “The Court w ill show then that the Motion for Discovery, P ro duction and Inspection of Ev idence will be granted by the Court.” No w ritten order granting the mot ion was entered. At trial, appell ant’s counsel ob jected to admission into evi dence of the thr ee v ials containing the swabs and the bag in wh ich they were contained, asserting that the State had failed to “turn over” the sw abs in accordance w ith the discovery m otion granted by the court so that he could conduct independent tests on the DNA

sam ples. Appellant’s counsel acknowledged the State’s open file policy, but stated that the vials them selves were not in the file. He argued that the sw abs should have been produced in response to the item in his m otio n re que stin g “A ll obj ects an d ta ngib le property taken by the S tate from the defendant, including but not limited to the following: a. clothing, b. personal property.” The1 App ella nt’s discovery m otion also contained an item enco mpas sing rep ort s

pertaining to “blood, other body fluids, breath, [or] hair.” It is undisputed that appellant had been provided a copy of the report from the State’s expert. 4 prosecutor

responded that the sw abs had rem ained at the Dallas labo ra tory following testing, and that appellant had copies of the reports giving the test results and had n ever asked for independent testing. The trial court overruled the obje ction to the adm ission of the swab s. Appellant argues on appeal that the S tate’s failure to make the DNA s amples available to him without furth er request on his part am ounted to the w illful withholding of the sam ples. W e cannot agree. The sw abscan not

rea son ably

be s aid to be covered by the discovery request cited by appellant at trial. Cf. T errell v. Sta te , 521 S.W.2d 618 (Tex.Crim .App. 1975) (m otion expressly requested access to cont rolled subs tance for independenttesting). Even if the sw abs areview

ed a s ob j ects or item s of tan gibleproperty taken by the State, the swabs containing cell samples fromRebecca and the ch ild were nottaken fromappellant and are thus clearly outside the scope of the request. 1 Given the lack of a clear request for them , the actions of the prosec ution did not amount to the willful withholding of

the sam ples. The State referred spec ificall y to the DNA test results during the pretrial hearing at which the discovery m otion was cons idered, some five mont hs beforetrial. The record does notref lect tha t th e su bj ect

w as r aise d ag ain until the samples
w ereoff ere d into ev iden ce a t tr ial. Und er t hos e cir cum sta nce s, t he t rial cour t did not err by overrul ing appel lant’s objection to admission of the swabs.5

Atpoints in the section of his brief presenting his argument on this issue, appellant characterizes his trial objection as one obj ecting to the adm ission of DNA test imony by the State’s expert witness. The record does not reflect that appellant objected to adm ission of the expert’s

testimon y, or to adm ission of the expert’s report. As noted, appellant’s counsel objected at trial to the adm ission into evidence of the three vials containing the three oral swabsby w hich cell sam ples were taken from the m ouths of appellant, Rebecca and he r child, and of the bag contai ning the vi als. Even if the trial court’s ruling on adm ission of the swabswas error, it w

as rendered har mless because appellant made no obj ection to the testim ony of the State’sexp ertthat appellantw as t he f ath er o f R ebe cca ’schil d. I t isw ell est ablished that objections to the admissi on of eviden ce are waived when subst ant iall y similar evidence is adm itted without obj ection. See Brosky v. State, 915 S.W.2d 120, 135 (Tex. App.-- Fort

W orth 1996, pet. ref’d) , cert. deni ed, 519 U.S. 1020 (199 6)

. We over rule appellant’s first issue. Appella nt’s second issue assigns error to the trial court’s failure to prevent the State from m aking im proper j uryargum ent during the punishm ent phase of the trial. Appellant concedes no objec

tions were raised at trial to the pr osecutor’s argum ents but urges for poli cyreasons that

the prosecutor’s argum ents should be treated as struct ural error not requiring preservation by obj ection. The rules t hat govern our review include the m andate of Rule 33.1 of the Tex as Rules of Appellate Procedure that pres ervation of a com plaint for appellate review requires a contemporaneous objection. Tex.R.App.Proc. 33. 1. T his ruleappl i es to com plaints of improper j ury argum ent. Mathis v . State , 67 S.W.3d 9186

(Tex.Crim .App. 2002) ; see Cockrell v. State , 933 S .W.2d 73 (Tex. Crim .App. 1996), cert. denied, 520 U.S. 1173 (1996). In Ma th is , the court declined to overrule Cockrell , which the court described as “pe rfe ctly in line with Rule of Appellate Procedure 33.1 and the policies underlying pre ser

vat ion of er ror ." 6 7 S .W.3d a t 92 7. We m ust con clu de that an y errors arising from improper prosec utorial argument w ere not preserved for our review . W e overrule appellant’s second issue and affirm the judgm ent of the trial court.

Jam es T . C am pbe ll Justice Do not publish.