COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00290-CR

JAY THAYER WILLIAMS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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A jury convicted Appellant Jay Thayer Williams of capital murder, and the 

trial court sentenced him to life imprisonment. Appellant brings three points on 

appeal, challenging the sufficiency of the evidence and contending that the trial 

court abused its discretion by admitting testimony and exhibits regarding his 

known fingerprints seized in 1983 and by allowing testimony comparing the 

 1

See Tex. R. App. P. 47.4.
2

known fingerprints to latent fingerprints collected at the crime scene. Because 

the trial court committed no reversible error and because the evidence is

sufficient to support the jury’s verdict, we affirm the trial court’s judgment.

Statement of Facts

Charles and Sandra Martin lived in Fort Worth with their two children. In 

September 1986, they put their house up for sale, advertising it by way of a “For 

Sale” sign placed in their front yard. On September 22, 1986, Charles called 

home to speak to his wife. His five-year-old son answered the phone and told his 

father that Sandra was in the “other room and the door [was] locked.” A few 

minutes later, Charles called home again. His son again answered the phone 

and stated that Sandra was in the “other room and the door [was] locked,” and, 

when questioned by his father whether anyone had been to the house, added 

that a man had come to look at the house.

Charles left work and went home, where he found the bedroom door 

closed and locked. Charles knocked on the door and then broke the door open. 

Inside, he found Sandra dead on the floor beside the bed with duct tape around 

her head. Her hands were bound together with duct tape; her ankles were also 

bound with duct tape but were not bound together. Her skirt was pulled up, and 

her underwear was pulled down around her right ankle. Charles pulled some of 

the duct tape away from Sandra’s nose and called the police.

The police found a pillow with a bullet hole in it next to Sandra’s body. The 

autopsy found that Sandra had died from acute cerebral laceration and 
3

intracranial hemorrhage caused by a gunshot wound to the head. Bruising on 

her thyroid and hemorrhaging within the strap muscles of her neck indicated that 

before being shot, Sandra had been strangled.

Crime scene officer Jim Varnon of the Fort Worth Police Department 

(FWPD) removed the duct tape from Sandra’s body and was eventually able to 

separate the layers of tape to recover prints from parts of the tape that had been 

covered by other layers. Over the years, the fingerprints were submitted to the 

Texas Department of Public Safety’s (TDPS’s) Automatic Fingerprint 

Identification System (AFIS) six separate times but yielded no positive results.

In 2009, Detective Jose Hernandez of the FWPD’s cold case unit began 

reviewing the Martin case. He again submitted the fingerprints to AFIS, as well 

as to the FBI’s fingerprint database. No matches were found.

Hernandez then decided to physically take the prints to TDPS’s latent print 

section in Austin. About three weeks later, that lab gave him Appellant’s name 

and other information that prompted him to make contact with the Temple Police 

Department. The record does not indicate exactly what information Hernandez 

received or exactly from whom he received it because the trial court sustained 

Appellant’s hearsay objection when Hernandez seemed about to testify on that 

subject.

Hernandez traveled to Temple, where he met with that police department’s 

records custodian Skip Carmouche. From Carmouche, Hernandez obtained a 

fingerprint card containing Appellant’s fingerprints, collected in connection with 
4

his 1983 arrest in Temple for driving with a suspended license. Hernandez then 

drove back to Fort Worth and submitted the Temple fingerprint card to the FWPD 

crime lab’s latent print examiner. Results from the crime lab led Hernandez to 

obtain a warrant for Appellant’s arrest for Sandra’s murder.

Before trial, the State moved to retake Appellant’s fingerprints because the 

police officer who had originally taken his prints upon his arrest for Sandra’s 

murder was no longer employed by FWPD. To avoid having to call the former 

employee as a witness at trial to testify about the fingerprints, the State wanted to 

retake Appellant’s prints so that a current FWPD employee could testify about 

them. Appellant objected under the Fourth Amendment to the U.S. Constitution 

and article one, section nine of the Texas Constitution. The trial court allowed 

the fingerprinting but granted Appellant a running objection at trial to the use of 

them.

At trial, Appellant objected when the State moved to admit the Temple 

fingerprint card. Appellant objected on relevance grounds and further argued 

that the fingerprints were taken when he was under arrest, in violation of the 

Fourth Amendment to the U.S. Constitution and article one, section nine of the 

Texas Constitution, and that the State was attempting to introduce evidence in 

violation of article 38.23 of the code of criminal procedure.

The trial court initially sustained Appellant’s Fourth Amendment objection 

after a hearing, but after a later hearing, the trial court overruled Appellant’s 

objections. The trial court granted Appellant a running objection to the evidence.
5

When the State later offered the Temple fingerprint card during 

Hernandez’s testimony, Appellant objected that the fingerprint card was hearsay 

and that it violated his Sixth Amendment right to confrontation because he did not 

have the opportunity to confront and cross-examine the person who obtained the 

prints. He also reasserted his Fourth Amendment and article one, section nine

objections. The trial court conditionally admitted the fingerprint card but on the 

next day admitted the fingerprint card for all purposes, stating that Appellant’s 

prior objections were reconsidered, still overruled, and running.

James Freed, a fingerprint analyst with the FWPD, testified that six 

fingerprints taken from the duct tape matched those on the fingerprint card from 

Temple. He then testified about State’s Exhibits 68–73, each of which, he 

testified, had an enlarged photo of one of the prints from the fingerprint card and 

of one of the prints from the duct tape.

Appellant recalled Freed in his defense. During his testimony, Freed 

stated that his earlier testimony regarding State’s Exhibit 73 was incorrect, in that 

the left thumbprint he had matched to the duct tape was actually not from the 

Temple fingerprint card. In a hearing outside the presence of the jury, the State 

produced DPS records of a 1981 Dallas arrest of Appellant. Freed stated that he 

had used a print taken at the time of this Dallas arrest for State’s Exhibit 73, not 

the Temple fingerprint card.

Appellant moved to strike, stating, “I move that that would be removed 

from evidence, Your Honor, be stricken from the record and the jury admonished 
6

not to consider that which was offered and introduced from—by Mr. Freed as a 

Temple print when, in fact, it’s not.” The State offered to strike the exhibit and to 

strike the testimony regarding “the print appearing under the title ‘Left Thumb 

[Appellant].’” The following exchange then occurred:

THE COURT: All right. Then the hearing is over. Defense motion 

granted.

[Defense Counsel]: [The prosecutor] moved to—he moved to strike

the testimony about it. I don’t want to strike the testimony. I just 

want you to instruct the jury not to consider it. Take it out and tell 

them not to consider it.

THE COURT: Take out that exhibit and any testimony concerning 

that exhibit. Am I understanding correctly?

[Defense Counsel]: No, just the exhibit. I would like to be able to 

harp on the fact that he continually professed perfection and that—

THE COURT: I got you. I see what you’re saying. And I was 

thinking specifically of testimony as to a specific comparison. But if 

you’re moving to strike the—

[Defense Counsel]: Let me withdraw my motion to strike it.

THE COURT: Okay.

On questioning by the State in front of the jury, Freed acknowledged that 

the left comparison thumbprint was not taken from the Temple fingerprint card 

but stated that it was Appellant’s left thumbprint, just taken from a different 

sample. Appellant did not timely object to this testimony.

The jury found Appellant guilty and assessed punishment of life 

imprisonment. The trial court sentenced him accordingly.
7

Sufficiency of the Evidence

In his third point, Appellant challenges the sufficiency of the evidence to 

support his conviction. In our due-process review of the sufficiency of the 

evidence to support a conviction, we view all of the evidence in the light most 

favorable to the verdict to determine whether any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.2

 This 

standard gives full play to the responsibility of the trier of fact to resolve conflicts 

in the testimony, to weigh the evidence, and to draw reasonable inferences from 

basic facts to ultimate facts.3

The trier of fact is the sole judge of the weight and credibility of the 

evidence.4

 Thus, when performing an evidentiary sufficiency review, we may not 

re-evaluate the weight and credibility of the evidence and substitute our judgment 

for that of the factfinder.5

 Instead, we determine whether the necessary 

inferences are reasonable based upon the cumulative force of the evidence 

 2

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Wise 

v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).

3

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Blackman v. State, 350 

S.W.3d 588, 595 (Tex. Crim. App. 2011).

4

See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise, 364 

S.W.3d at 903.

5

Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
8

when viewed in the light most favorable to the verdict.6 We must presume that 

the factfinder resolved any conflicting inferences in favor of the verdict and defer 

to that resolution.7

The standard of review is the same for direct and circumstantial evidence 

cases; circumstantial evidence is as probative as direct evidence in establishing 

the guilt of an actor.8

Appellant argues that the evidence is insufficient to support the jury’s 

verdict that he is guilty of intentionally causing Sandra’s death by shooting her 

with a deadly weapon, to wit: a firearm, in the course of committing or attempting 

to commit aggravated sexual assault of her. Specifically, Appellant challenges 

the evidence that he was in the course of committing or attempting to commit 

aggravated sexual assault. He argues that the only evidence that he was in the 

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

assault of Sandra was the fact that she was discovered with her panties around 

her ankle. There was no evidence of trauma to her genital area, nor evidence of 

third-party DNA. Appellant points out that the crime scene officer, Varnon,

testified that he saw no indication of a completed sexual assault. Hernandez 

 6

Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011).

7

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903.

8

Isassi, 330 S.W.3d at 638; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. 

App. 2007).
9

testified that there was no forensic evidence to support the theory that Sandra

had been sexually assaulted at the time of her death. Nor was there evidence of 

a struggle, either from an examination of the undisturbed bed or from the Martins’

five-year-old son’s testimony that he heard no noise coming from the bedroom.

Appellant argues that, although the evidence may provide a strong suspicion that 

the assailant possessed sexual intent, there is no evidence proving an attempted

penetration of Sandra’s female sexual organ, mouth, or anus.

The State points to the testimony of Dr. Marc Krause, the deputy medical 

examiner who performed the autopsy on Sandra’s body. When asked about the 

lack of physical evidence of sexual assault at trial, he testified that, although he 

did not find evidence of genital trauma, in his opinion the evidence did not 

exclude the possibility of sexual assault. The State also points out that although 

Appellant argues that there is no evidence of attempted penetration or evidence 

that his acts amounted to more than mere preparation that tended, but failed, to 

effect commission of the intended offense, “Appellant’s argument ignores 

methods other than penile penetration by which sexual assault may occur . . . . ”

Neither the law nor any allegation in the indictment requires proof of a 

completed sexual assault. The State was required to prove only that Appellant 

intentionally caused Sandra’s death in the course of committing or in the course 

of attempting to commit the offense of sexual assault. That is, the State was 

required only to prove that Appellant intentionally caused Sandra’s death in the 

course of doing an action that amounted to more than mere preparation that 
10

tended but failed to effect the commission of the sexual assault.9 Sexual assault 

may occur by any genital or anal penetration or by causing the genitals of the 

assailant to penetrate the mouth of the complainant or by causing the genitals of 

the complainant to penetrate the mouth of the assailant.10

Appellant was in a locked room with Sandra for an extended period of 

time. She was found lying on the floor of her bedroom, next to her bed. Her skirt 

was pulled up to her hips; her panties were pulled down around her right ankle. 

Duct tape bound her wrists and each ankle, but the ankles were not bound 

together. Her head was wrapped in duct tape that covered her eyes, nose, and 

mouth. A piece of duct tape was also found attached to one of the bedposts.

Although Sandra’s purse and credit card had been taken, her Rolex watch, gold 

necklace, gold bracelet, and gold earrings were still on her body. Various police 

officers testified that the crime scene they viewed suggested sexual assault to 

them. Further, the fact that expensive jewelry was left on the body appeared to 

rule out robbery as a motive. Additionally, a motive need not be exclusive.11 The 

 9

See Hackbarth v. State, 617 S.W.2d 944, 946 (Tex. Crim. App. 1981).

10Tex. Penal Code Ann. § 22.011(a)(1)(A–C) (West 2011).

11See Nelson v. State, 848 S.W.2d 126, 132 (Tex. Crim. App. 1992)

(holding that even if jury believed that defendant killed the complainant because 

the complainant looked at him with desire, the jury could also believe that 

defendant killed the complainant in the course of committing robbery), cert. 

denied, 510 U.S. 830 (1993).
11

fact that something may have been stolen does not rule out murder in the course 

of attempting or committing a sexual assault.

As the Texas Court of Criminal Appeals explained in Swearingen v. State,

Based on the circumstantial evidence in the multitude of possible 

scenarios suggested by the physical evidence, a rational jury could 

have entertained reasonable doubt regarding [Appellant’s] guilt. The 

question, however, is whether a rational jury would have necessarily 

entertained a reasonable doubt regarding the aggravating elements 

of the offense.12

Following the Swearingen court,13 we hold that the evidence is not so 

obviously weak that a rational jury would necessarily have entertained a 

reasonable doubt that Appellant intended to sexually assault the complainant and 

that he attempted to do so. We overrule Appellant’s third point.

Admissibility of Fingerprint Exhibits and Testimony

In his first and second points, Appellant argues that the trial court abused 

its discretion by admitting testimony and exhibits regarding his known fingerprints 

on the Temple fingerprint card and by admitting testimony comparing his known 

fingerprints to latent fingerprints collected at the scene of Sandra’s murder.

The State argues that Appellant failed to preserve his first and second 

points by withdrawing his motion to strike State’s Exhibit 73 and the erroneous 

testimony regarding the origin of Appellant’s known left thumbprint on that 

 12101 S.W.3d 89, 96 (Tex. Crim. App. 2003).

13See id.
12

exhibit. While Appellant did withdraw his motion to strike the exhibit, his 

discussions with the trial court in the voir dire hearing indicate that he never 

moved to strike the testimony; defense counsel wanted the jury to hear it and he 

wanted to “harp on the fact that [Freed] continually professed perfection.” It was 

the prosecutor who had moved to strike the testimony.

Nevertheless, after the voir dire hearing, the prosecutor established on 

cross-examination before the jury that Freed had matched Appellant’s known left 

thumbprint from a different sample than the Temple fingerprint card to a latent left 

thumbprint found at the murder scene. Appellant did not timely object to this 

testimony. The erroneous admission of evidence will not require reversal when 

other such evidence is admitted without objection.14 Accordingly, we agree with 

the State in part. That is, we agree that Appellant failed to preserve a complaint 

regarding evidence of his left thumbprint.

Regarding Appellant’s remaining challenges to the fingerprint evidence, we 

believe that he sufficiently communicated his confrontation objection to the trial 

court regarding both the physical fingerprint evidence and Freed’s testimony 

about it and that he received an unfavorable ruling. We will therefore address 

Appellant’s remaining challenges on their merits.

 14Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); Leday v. 

State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).
13

Appellant argues that testimony regarding the known prints by a person 

who did not take the prints is a denial of his Sixth Amendment right to 

confrontation.15 We disagree. The right of confrontation applies only to 

testimonial statements.

16 A statement is testimonial when made “under 

circumstances which would lead an objective witness reasonably to believe that 

the statement would be available for use at a later trial.”17 The taking of 

fingerprints is not the same as scientific testing. It is more similar to taking a 

photograph, handwriting, drawing a picture, or recording a voice exemplar. That 

is, a fingerprint card is not testimonial unless it contains testimonial notations.18

The Texas Court of Criminal Appeals has stated that certain things, such 

as a person’s voice, appearance, and fingerprints, are not testimonial. Neither is 

there any expectation of privacy in voice or features or handwriting that a person 

routinely presents to the public. Specifically, the Texas Court of Criminal 

Appeals has explained,

In Olson v. State, this Court held that compelling a handwriting sample 

from a defendant does not constitute compelling an accused to “give 

evidence against himself” in violation of the Texas Constitutional provision 

 15See U.S. Const. amend. VI.

16Crawford v. Washington, 541 U.S. 36, 51–52, 124 S. Ct. 1354, 1364 

(2004).

17Id.

18See United States v. Wade, 388 U.S. 218, 223, 87 S. Ct. 1926, 1930 

(1967); Schmerber v. California, 384 U.S. 757, 764, 86 S. Ct. 1826, 1832 (1966).
14

on self-incrimination. The Court further held that compelling a blood test, if 

taken under conditions which comport with due process, likewise does not 

violate the state privilege against self-incrimination. This Court reasoned 

that such tests are non-testimonial in nature and thus the self-incrimination 

privilege is not implicated under such circumstances. The Court in Olson

further noted that many types of physical evidence are compellable from 

an accused consistent with both the Fifth Amendment of the United States 

Constitution and Art. I, Sec. 10, of the Texas Constitution. A partial list of 

these types of physical evidence include fingerprints, examination of the 

tongue, fingernail scrapings, footprints, requiring the accused to stand in a 

lineup, requiring the accused to raise his hand before the jury, a paraffin 

test, [and] requiring the accused to put on clothes and speak before the 

jury.19

Fingerprints are not testimonial when they are given by a defendant,20 nor 

are they testimonial when they exist on a card and are presented before a jury. If 

the fingerprint card is shown to be sufficiently reliable and adequately connected 

to the person in question, the fingerprint card, absent testimonial notations, is still 

nontestimonial. We therefore hold that the trial court did not abuse its discretion 

by admitting testimony and exhibits regarding the known fingerprints provided by 

Appellant in 1983, nor did the trial court abuse its discretion by admitting

testimony comparing Appellant’s known fingerprints to the latent fingerprints 

collected at the crime scene. We overrule Appellant’s first and second points.

 19Bell v. State, 582 S.W.2d 800, 806–07 (Tex. Crim. App. 1979) (emphasis 

added; citations omitted), cert. denied, 453 U.S. 913 (1981).

20See Miffleton v. State, 777 S.W.2d 76, 79–80 (Tex. Crim. App. 1989).
15

Conclusion

Having overruled Appellant’s three points, we affirm the trial court’s 

judgment.

LEE ANN DAUPHINOT 

JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: December 5, 2013