Nikita West v. the State of Texas

CourtCourt of Appeals of Texas
DecidedNovember 4, 2022
Docket06-22-00031-CR
StatusPublished

This text of Nikita West v. the State of Texas (Nikita West v. the State of Texas) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nikita West v. the State of Texas, (Tex. Ct. App. 2022).

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-22-00031-CR

NIKITA WEST, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 50724-A

Before Morriss, C.J., Stevens and van Cleef, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

Nikita West was convicted of aggravated robbery with a deadly weapon, enhanced by

one prior conviction, and was sentenced to forty-eight years’ incarceration. Although we modify

the judgment to reflect that West was convicted of the first-degree-felony offense of aggravated

robbery, we conclude that (1) the trial court did not err in admitting buccal swabs into evidence

and, (2) even assuming admission of the photographic lineup was error, the record does not

reflect a substantial likelihood of misidentification. We, therefore, affirm the trial court’s

judgment, as modified.

Moniqua Oliver was working as the manager of the Cash Store in September 2015 when

a man dressed as a woman entered the store carrying a large silver handgun. The man, clad in

women’s slacks, blouse, scarf, and sandals, seated himself at a table across the counter from

Oliver, who was speaking to a customer. Oliver informed the man that the customer was filling

out paperwork and that she could assist him. The man replied that he would wait. A few

minutes later, the robber “slid across the desk,” pushed Oliver and the customer to the ground,

held them at gunpoint, and announced that he was robbing the store. Based on the man’s

demeanor, Oliver believed the man was dressed like a woman to disguise himself. The man

pointed the gun at Oliver and dragged her by the hair to a different desk to retrieve cash from the

drawer. He then forced Oliver to the front of the store to retrieve cash from a second drawer and,

finally, dragged her to the back of the store, where she retrieved cash from the safe. The man

warned Oliver not to trigger any alert to the police, and he removed the mag lock and the panic

alarm from Oliver’s neck. He then put Oliver and the customer in the bathroom and told them

2 not to come out. In addition to approximately $7,000.00 in cash, the man took Oliver’s purse

and cell phone. When interviewed two hours after the robbery, Oliver stated that the robber was

forty or fifty years old, was freshly shaven, and had a dark complexion. He was wearing a black

wig, a black and white shirt, black pants, a pink scarf around his neck, and flip flops.

At trial, Oliver identified West—the man “diagonal from [her] with the turquoise face

mask”—as the man who robbed the Cash Store. After the trial court asked West to lower his

mask, Oliver again identified him as the assailant.

(1) No Error in Admission of Buccal Swabs

Detective Kirby DeLoach of the Longview Police Department (LPD) investigated the

Cash Store robbery. DeLoach testified that the suspect left at the Cash Store a piece of paper

that was swabbed for DNA. He submitted the swab to the Texas Department of Public Safety

(DPS) laboratory and later received a “CODIS hit letter” identifying a person believed to match

the profile from the submitted DNA sample. The trial court sustained West’s objection to

testimony regarding the identity of the person believed to match the submitted DNA profile.

West later signed a voluntary DNA request form authorizing the LPD to collect DNA

samples from him. In accordance with West’s authorization, Detective Rebecca Reeves

collected the DNA samples from West.1 She gave the DNA samples to DeLoach, who then

submitted them to the DPS.2

1 Nikita West, Jr., West’s son, voluntarily provided a sample of his DNA to the LPD as well. Reeves also submitted Nikita West, Jr.’s, DNA sample to the DPS. 2 Voluntary DNA sample request forms are proprietary to the LPD and have been in use since 2015. 3 According to DeLoach, West’s voluntary DNA samples were taken via buccal swabs.

The swabs, purchased from MedTech Pharmaceutical, arrived at the DPS in boxed, sealed

envelopes. In accordance with general procedure, Reeves collected two buccal swabs from

West, one from each side of the mouth. After the samples were taken, the swabs were re-

packaged and sealed. Reeves recorded the following information on the outside of each sealed

package: the collection date and time, the name of the individual from whom the DNA samples

were taken, and whether that sample was taken from the left or right side of the mouth. In

accordance with procedure, an evidence tracking number—TYL-1510-07224—was assigned to

the case and was included on all DNA evidence submitted by the LPD to the DPS. DeLoach

knew that the DNA samples submitted to the DPS belonged to West because that was the

information Reeves provided to him. DeLoach identified State’s Exhibit 7 as the envelopes

Reeves gave him after she collected the buccal swabs. The evidence tracking number assigned

to this case was consistent with the number on the envelopes and was signed by Reeves and

DeLoach.

In the first of two appellate issues, West contends that the trial court erred by “permitting

the introduction of evidence of the buccal swab” because the “State had not established the first

link in the chain of custody.”

“A trial judge has great discretion in the admission of evidence at trial.” Druery v. State,

225 S.W.3d 491, 503 (Tex. Crim. App. 2007). “We review a trial court’s decision to admit

evidence for an abuse of discretion.” Colone v. State, 573 S.W.3d 249, 263–64 (Tex. Crim. App.

2019); see Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court “abuses

4 its discretion when it acts without reference to any guiding rules and principles or acts arbitrarily

or unreasonably.” Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019).

The Texas Court of Criminal Appeals has explained that, “although the evidentiary rules

do not specifically address proper chain of custody, they do state that identification for

admissibility purposes is satisfied if the evidence is sufficient to support a finding that the matter

in question is what its proponent claims. Druery, 225 S.W.3d at 503–04 (citing TEX. R. EVID.

901(a); Kingsbury v. State, 14 S.W.3d 405, 407–08 (Tex. App.—Waco 2000, no pet.)).

“Evidence may be authenticated in a number of ways, including by direct testimony from a

witness with personal knowledge, by comparison with other authenticated evidence, or by

circumstantial evidence.” Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012).

“Absent evidence of tampering or other fraud, . . . problems in the chain of custody do not affect

the admissibility of the evidence. Instead, such problems affect the weight that the fact-finder

should give the evidence, which may be brought out and argued by the parties.” Druery, 225

S.W.3d at 503–04.

West claims that the buccal swabs were not properly authenticated because the State

failed to show the beginning of the chain of custody. See Hartsfield v. State, 200 S.W.3d 813,

818 (Tex. App.—Texarkana 2006, pet. ref’d) (item lacking distinctive features must be

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