In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-22-00024-CR ___________________________
JAMES ARTHUR PRESTON, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court Tarrant County, Texas Trial Court No. 1543103D
Before Birdwell, Bassel, and Womack, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION
I. INTRODUCTION
A grand jury charged Appellant James Arthur Preston with two counts of
aggravated sexual assault of a child and one count of indecency with a child by
contact. A jury convicted Preston on all counts and assessed his punishment at
eighteen years’ confinement for each count of aggravated sexual assault of a child and
five years’ confinement for the indecency count. Preston has appealed his convictions
and sentences and briefed two issues for our review. Because neither issue presents
reversible error, we will affirm.
II. BACKGROUND
Because Preston does not challenge the sufficiency of the evidence supporting
his convictions, we will summarize only the facts relevant to his appellate issues.
A. Allegations against Preston and Subsequent Investigation
Preston was in a relationship with Mother1 for about twenty years. Mother’s
three children—T.L., D.L., and R.M.—called him “Sock” or “Stepdad.” To T.L.,
Preston was her stepfather. One day in 2016, T.L. reported that Preston had touched
her inappropriately. She first contacted her mother, who then called 911. T.L. told
Officer Dustin Durham of the Arlington Police Department that Preston “had
1 We refer to the complainant and family members by aliases to protect the minors’ privacy. See Perez v. State, 562 S.W.3d 676, 680 (Tex. App.—Fort Worth 2018, pet. ref’d).
2 touched her down there.” Officer Durham clarified that T.L. meant Preston had
touched her vagina. She said that Preston then pulled her panties to the side, licked
her vagina, and penetrated her vagina with his fingers. T.L. told Officer Durham that
Preston went and checked on D.L., and while he was gone, she texted her mother to
tell her what had happened. She then told Officer Durham that Preston came back
and “did the same thing again.”
Later that day, another officer escorted the family to a local hospital, where
T.L. was examined by a sexual assault nurse examiner (SANE). Based on what T.L.
told her, the SANE collected swabs of T.L.’s vaginal area. DNA testing on two swabs
from T.L.’s sexual assault kit revealed a mixed DNA profile that had a major female
contributor and a minor male contributor.
B. Preston’s Apprehension and Additional DNA Evidence
Eventually, Preston was arrested.2 By then, a new detective, Morgan Spear, had
taken over the case. She obtained a search warrant and collected DNA from Preston
2 It is not clear from the record why it took so long to apprehend Preston or even when exactly he was apprehended. Police interviewed T.L. and her mother and brother on October 11, 2016. T.L. testified at trial that she remembered the police “trying to figure out where he was and still [not being able to] find him” that day. She also testified that “a couple of months” after that, Preston moved back in with them, and they all lived together for “a year . . . or so” at a different location. However, Mother testified that she had not cohabitated with Preston since October 2016. The original detective assigned to this case testified that he had “obtained an arrest warrant on November 26th.” The indictment in this case was filed on July 20, 2018. The search warrant for Preston’s DNA was dated September 6, 2018, and another detective testified that, at that point, a suspect had been arrested. The first detective testified that he believed Preston “was arrested in ’18.”
3 by swabbing the inside of his mouth with buccal swabs. The same technologist who
performed the testing on the known DNA samples taken from T.L. also performed
testing on Preston’s DNA sample. Those test results were then analyzed by a forensic
DNA analyst, who reported that Preston “could not be excluded as the minor
contributor” in the mixture on the swabs from T.L.’s labia majora and that “Preston
or any male patrilineal relative could not be excluded as the contributor” of the Y
chromosome DNA profile obtained from both the labia majora and labia minora
swabs.
C. Trial
At trial, Detective Spear testified that she had executed a search warrant for
Preston’s DNA by taking two buccal swabs from the inside of his mouth. She
identified State’s Exhibits 4 and 4A as the envelope in which she had packaged the
buccal swabs “and then [the] buccal swabs themselves,” respectively. She testified
that the buccal swabs themselves looked familiar but that she did not write any of the
writing on the back of the swab packaging. When the State first offered Exhibits 4
and 4A into evidence, Preston objected that “the chain of custody ha[d no]t been fully
established.” The trial court sustained the objection.
Detective Spear identified State’s Exhibit 4 as the evidence envelope that she
had filled out for the buccal swabs. She recognized the envelope by her own
handwriting, her name, her badge number, and Preston’s name. She identified State’s
Exhibit 4A as the sealed cotton swabs that she had torn open, as well as the swabs
4 inside the swab packaging. Detective Spear believed the writing on the packaging to
be “from the lab.” The State again moved to admit Exhibits 4 and 4A, and Preston
objected that “someone else ha[d] opened . . . and handled this.”3 The trial court
sustained the objection as to State’s Exhibit 4A but admitted State’s Exhibit 4, the
envelope. Detective Spear then testified that State’s Exhibits 4 and 4A were unique
items based on the writing on the outside of the envelope that she recognized, which
she reaffirmed was her handwriting. She also testified that nothing about State’s
Exhibit 4A appeared to have been altered.
The State’s next witness was Farrah Plopper, the forensic DNA analyst who
had tested the swabs from T.L.’s labia minora and labia majora, had obtained the
DNA profiles from those swabs, had analyzed the results, and had compared the
results to Preston’s buccal sample. She testified that the markings on State’s
Exhibit 4A were unique and had been put on there by her lab, the University of
North Texas Center for Human Identification. The State then offered State’s Exhibit
4A again, but after Plopper testified that she had not put the markings on Exhibit 4A
and that someone else had handled it, Preston objected “that the proper chain of
custody ha[d] not been established as to the item of evidence.” The trial court
sustained the objection.
This time, Preston limited his objection to State’s Exhibit 4A, the buccal 3
5 Plopper then testified that she “did not actually handle the swab” within the
lab. However, she also testified that her case file contained the chain of custody for
the buccal swab collected from Preston, that there were no concerns in the way that
the piece of evidence was handled and processed throughout the lab, that she did not
have any concerns that the item marked as State’s Exhibit 4A was a buccal swab
collected from Preston, and that the buccal swab “was compared to profiles obtained
from the sexual assault kit.” The State again moved to admit Exhibit 4A, and Preston
renewed his objection “as to not establishing the chain of custody.”
The trial court then, outside the jury’s presence, admitted State’s Exhibit 4A for
the record only. While the jury was out, Plopper testified that the markings on State’s
Exhibit 4A were the “case number and item number, but it also [had] the initials of
our technologist that did the test.” After hearing from the State, the trial court asked
Preston to clarify that his objection was “just chain,” and Preston responded, “Yes,
there’s other people in this chain of custody that she cannot vouch for herself. Again,
it is conclusory.” The trial court sustained that objection.
The trial court then brought the jury back in, and Plopper identified the
markings on State’s Exhibit 4A as “the case and item number, 16-2772.4, as well as
the initials DY and the date, 10-8-18.” Plopper testified that she knew that “DY” was
Darice Yoshishige, a technologist in the lab. Plopper further testified that Yoshishige
“would have cut approximately half of one of the swabs [marked as State’s
Exhibit 4A], performed DNA extraction on it, . . . and then amplified the DNA and
6 loaded it on the genetic analyzer.” The State then offered Exhibit 4A one final time,
and Preston renewed his objection “as to the chain of custody since that witness has
not been here to testify as to what she did.” The trial court overruled the objection
and admitted State’s Exhibit 4A. Plopper was allowed to testify about her DNA
analysis and comparison of the profiles that she had obtained from the labial swabs to
the known DNA samples of T.L. and Preston. The jury found Appellant guilty of all
three counts submitted to it.
The jury heard more testimony and arguments at the trial on punishment and
assessed Preston’s punishment at eighteen years’ confinement for each count of
aggravated sexual assault of a child and five years’ confinement for indecency with a
child by contact.4 The State made an oral motion “to stack the verdicts under Texas
Penal Code [Section 3.03](b)(2)(A),” and the trial court ordered Preston to serve his
sentences consecutively in order of the counts. See Tex. Penal Code Ann.
§ 3.03(b)(2)(A).
III. DISCUSSION
On appeal, Preston argues that the trial court erred (1) by allowing the State to
admit into evidence the DNA swabs taken from Preston when the State failed to
properly authenticate the evidence and (2) by stacking the sentences in violation of
4 The jury assessed no fine on all three counts.
7 Preston’s Eighth Amendment protection against cruel and unusual punishment. For
the reasons that follow, we reject these arguments.
A. No Abuse of Discretion in Admitting State’s Exhibit 4A
In his first issue, Preston argues that the trial court erroneously allowed the
State to admit State’s Exhibit 4A, the buccal swabs, into evidence when the State
failed to properly authenticate the evidence. The State responds that the trial court
did not err by overruling Preston’s “objection that the State had failed to authenticate
the buccal swab.”
We first note that we are unsure whether Preston has preserved a complaint
regarding the admissibility of this evidence. To preserve a complaint for our review, a
party must have presented to the trial court a timely request, objection, or motion
sufficiently stating the specific grounds, if not apparent from the context, for the
desired ruling. Tex. R. App. P. 33.1(a)(1); Montelongo v. State, 623 S.W.3d 819, 822
(Tex. Crim. App. 2021). Preston’s objections to State’s Exhibit 4A at trial all regarded
the chain of custody. “Absent evidence of tampering, issues regarding the chain of
custody bear on the weight, rather than on the admissibility, of evidence.” Davis v.
State, 313 S.W.3d 317, 348 (Tex. Crim. App. 2010). On appeal, both parties treat
Preston’s “chain of custody” objection as an authentication objection. See Tex. R.
Evid. 901(a) (“To satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding that
the item is what the proponent claims it is.”). Citing a case from another court of
8 appeals, Preston contends that a “chain of custody” challenge “is really an attack on
the authenticity of the evidence under Rule 901 of the Texas Rules of Evidence.” See
Davis v. State, 992 S.W.2d 8, 10–11 (Tex. App.—Houston [1st Dist.] 1996, no pet.)
(“An objection to the chain of custody is similar to an objection to inadequate
authentication or identification in that both objections complain of the lack of the
proper predicate to admitting the item in question.”). We have reviewed “chain of
custody” complaints as complaints that evidence was not authenticated under
Rule 901, even when the appellant’s trial objection did not mention authentication or
the rule. See LopezGamez v. State, 622 S.W.3d 445, 457–58 (Tex. App.—Fort Worth
2020, pet. ref’d); Washington v. State, No. 02-13-00526-CR, 2015 WL 505172, at *5–6
(Tex. App.—Fort Worth Feb. 5, 2015, pet. ref’d) (mem. op., not designated for
publication). In keeping with that practice, we will review Preston’s first appellate
issue as though he preserved a complaint that State’s Exhibit 4A was inadmissible
because the State failed to authenticate it under Rule 901.
We review a trial court’s decision to admit evidence for an abuse of discretion.
Wright v. State, 618 S.W.3d 887, 890 (Tex. App.—Fort Worth 2021, no pet.). Under
this standard, the trial court’s decision to admit evidence will be upheld as long as it
was within the zone of reasonable disagreement. Id.
Proof of the beginning and end of the chain of custody will support admission
of the evidence barring any showing of tampering or alteration. Hall v. State,
13 S.W.3d 115, 120 (Tex. App.—Fort Worth 2000), pet. dism’d, improvidently granted,
9 46 S.W.3d 264 (Tex. Crim. App. 2001). Preston contends that “the State failed to
properly establish either the beginning or the end of the chain of custody for State’s
Exhibit 4A.” We disagree. Detective Spear’s testimony—and the envelope admitted
without objection as State’s Exhibit 4—established that she had torn open a package
of cotton swabs, had swabbed the inside of Preston’s mouth with the swabs, had
sealed the swabs (in their original packaging) inside an evidence envelope, and had
written distinctive identifying information on the outside of the envelope. She
identified Preston as the person from whom she had collected the buccal swab.
Generally, tagging an item of physical evidence at the time of its seizure and then
identifying it at trial based upon the tag is sufficient for admission barring any
showing by the defendant of tampering or alteration. Sneed v. State, 875 S.W.2d 792,
794 (Tex. App.—Fort Worth 1994, no pet.). Here, there was no showing that Exhibit
4 or 4A was tampered with in any way, and Preston does not claim otherwise. The
only “alteration” to either exhibit was the cutting of one of the swabs for testing
purposes and the writing on the swab packaging, both done by Darice Yoshishige.
There is nothing apparent from the record to intimate, suggest, or otherwise indicate
that the buccal swabs admitted as State’s Exhibit 4A were anything other than what
the State claimed they were—swabs of Preston’s DNA collected by Detective Spear
and then tested by the lab at the Center for Human Identification.
Preston argues that Spear and Plopper never “conclusively” testified to the
predicate facts the State needed to authenticate or identify State’s Exhibit 4A. His
10 argument attempts to impose a burden on the State that the Rules of Evidence do not
require. Rule 901 does not require the State to “conclusively” establish that an item
of evidence is what the State claims it is; in fact, we have said that the rule “does not
require the State to prove anything.” State v. Webb, 980 S.W.2d 924, 925 (Tex. App.—
Fort Worth 1998) (op. on reh’g), aff’d, 12 S.W.3d 808 (Tex. Crim. App. 2000). “It
requires only a showing that satisfies the trial court that the matter in question is what
the State claims; once that showing is made, the exhibit is admissible.” Id. at 925–26.
If a trial court finds that a reasonable juror could find that the evidence was
authenticated, then the evidence should be admitted. See Pondexter v. State, 942 S.W.2d
577, 586 (Tex. Crim. App. 1996).
Preston relies on Brown v. State, 240 S.W.2d 310, 310–11 (Tex. Crim. App.
1951), to support his contention that the “beginning of the chain of custody was not
established, and State’s Exhibit 4A was not properly authenticated.” In Brown, a blood
specimen was taken from the defendant by a nurse in the presence of a police officer,
who testified that it was placed in a tube by the nurse and left at the hospital. Id. at
310. A doctor testified that “the blood specimen was called to his attention by . . . a
laboratory technician in his employ, after it had been labeled with the name N. Brown
and sealed with paraffin, and that he sent it to Austin for analysis.” Id. A chemist for
the Department of Public Safety testified over objection that the specimen received
by mail from the doctor and labeled with the name of “N Brown” contained
“3.6 milligrams of alcohol per cc.” Id. at 310–11. The results of the blood test were
11 admitted over multiple objections, including that it had not been shown that the
specimen examined by the chemist was that taken from the defendant. Id. at 311.
The Court of Criminal Appeals held that the doctor’s testimony, “excluding the
hearsay statements offered over objection,” was not sufficient to establish that the
specimen taken by the nurse was the same specimen that was forwarded by the doctor
to the Department of Public Safety at Austin. Id.
Brown is distinguishable. The nurse who drew the blood in Brown did not
testify. Id. at 310. Here, Detective Spear testified that she had swabbed the inside of
Preston’s mouth with two buccal swabs, and she identified the buccal swabs marked
as State’s Exhibit 4A as the swabs she had taken from Preston. Also, Preston did not
make a hearsay objection to her testimony or to Plopper’s testimony.5 “Inadmissible
hearsay admitted without objection may not be denied probative value merely because
it is hearsay.” Tex. R. Evid. 802.
Even if Brown supported Preston’s argument, the Court of Criminal Appeals
has since said that the State is not required to prove a chain of custody if a witness
could authenticate the exhibit by other means, such as its distinctive characteristics.
Gardner v. State, 306 S.W.3d 274, 292–93 n.35 (Tex. Crim. App. 2009). Here, Plopper
identified the distinctive markings on the swab packaging, and Detective Spear
identified her own handwriting and the identifying information on the outside of the
5 After the buccal swabs were admitted, Preston made a hearsay objection to a different exhibit, a copy of Plopper’s forensic DNA report issued in 2018.
12 envelope in which she had placed the buccal swabs. Testimony that an item is what it
is claimed to be, a nonexpert’s opinion that handwriting is genuine (based on a
familiarity with it that was not acquired for the current litigation), and distinctive
characteristics of the item all satisfy the requirement of authenticating or identifying
an item of evidence. Tex. R. Evid. 901(b)(1), (2), (4).
The trial court did not abuse its discretion when it admitted State’s Exhibit 4A.
We overrule Preston’s first issue.
B. Punishment Argument Not Preserved
In his second issue, Preston argues that the trial court violated his Eighth
Amendment protection against cruel and unusual punishment by stacking his
sentences. The State responds that Preston failed to preserve this issue for appeal.
We agree with the State.
Generally, an appellant may not complain about his sentence, other than an
illegal-sentence claim, for the first time on appeal. Burg v. State, 592 S.W.3d 444, 451
(Tex. Crim. App. 2020); Bonilla v. State, 452 S.W.3d 811, 817–18 (Tex. Crim. App.
2014); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995); Mercado v. State,
718 S.W.2d 291, 296 (Tex. Crim. App. 1986). To preserve for appellate review a
complaint that a sentence is grossly disproportionate, constituting cruel and unusual
punishment, a defendant must present to the trial court a timely request, objection, or
motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a);
Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d).
13 Nothing in the record indicates that Preston ever presented his sentencing
complaint to the trial court. He did not object—or make any counterargument—
when the State asked the trial court to stack his sentences. Before pronouncing
sentence, the trial court asked, “Is there any legal reason why this defendant should
not now be sentenced at this time?” Preston said only, “No legal reason, Judge.” He
did not object after the trial court ordered that his sentences would “run consecutively
in order of the counts,” nor did he make the argument that he now makes on appeal
in the motion for new trial filed ten days after he was sentenced.6 Under these
circumstances, Preston has failed to preserve his claim. Cf. Sample v. State, 405 S.W.3d
295, 304 (Tex. App.—Fort Worth 2013, pet. ref’d). Accordingly, we overrule
Preston’s second issue.
IV. CONCLUSION
Having overruled Preston’s issues, we affirm the trial court’s judgments.
6 Even if we determined a disproportionality did exist between the gravity of Preston’s offense and the punishment assessed, there is no evidence in the record reflecting sentences imposed for similar offenses on criminals in Texas or other jurisdictions—necessary information for a reviewing court to conduct a proper Eighth Amendment cruel-and-unusual-punishment analysis. See Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 3011 (1983) (explaining that disproportionality analysis includes comparison of the sentence received to sentences for similar crimes in the jurisdiction and sentences for the same crime in other jurisdictions); see also Hulsey v. State, No. 02- 12-00205-CR, 2013 WL 627019, at *2 n.2 (Tex. App.—Fort Worth Feb. 21, 2013, pet. ref’d) (mem. op., not designated for publication).
14 /s/ Dana Womack
Dana Womack Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: July 20, 2023