Simon Michael Bullock v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 31, 2025
• Docket: 07-24-00069-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-24-00069-CR

SIMON MICHAEL BULLOCK, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 175th District Court Bexar County, Texas1 Trial Court No. 2023CR8246, Honorable Catherine Torres-Stahl, Presiding

January 31, 2025 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.

A jury convicted Simon Michael Bullock, Appellant, of continuous sexual abuse of

a child under the age of fourteen.2 In two issues, Appellant contends the trial court erred

by admitting DNA evidence and improperly charging the jury. We affirm.

1 Originally appealed to the Fourth Court of Appeals, this appeal was transferred to this Court by

the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. 2 See TEX. PENAL CODE ANN. § 21.02(b); see also id. § 22.021 (aggravated sexual assault as

underlying offense in conviction for continuous sexual abuse of child); § 21.11(a) (indecency with child as underlying offense in conviction for continuous sexual abuse of child). BACKGROUND

Following an outcry made by the complainant, E.B.,3 to his mother, Appellant was

indicted for continuous sexual abuse of a child by committing certain prohibited acts over

a period of more than thirty days. The jury heard testimony from, among others, E.B.,

E.B.’s mother, the sexual assault nurse examiner (SANE) who examined E.B. after his

outcry, and the forensic scientist who tested DNA evidence. The jury found Appellant

guilty and assessed punishment at confinement for a term of fifty-three years and a fine

of $10,000.

ANALYSIS

Admission of DNA Testing Results

In his first issue, Appellant asserts that the trial court abused its discretion in

admitting evidence of DNA testing results because the State failed to establish the chain

of custody for the evidentiary items that were tested. The State argues Appellant did not

preserve the issue for appeal because he failed to object each time the evidence was

offered or, alternatively, his objection at trial does not comport with his complaint on

appeal. We assume, without deciding, that Appellant preserved this issue for appeal.

We review a trial court’s ruling on the admissibility of evidence using an abuse of

discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). If the

3 To protect the identity of the complainant, we identify him by his initials. See TEX. R. APP. P. 9.10(a)(3).

2 ruling is within the zone of reasonable disagreement, an appellate court will not disturb it.

Id.

Beginning of Chain of Custody: Evidence Collected from Appellant

Bexar County Sheriff’s Office deputy Marc Patino testified that an investigator gave

him a warrant to take Appellant to be examined by a sexual assault nurse examiner

(SANE). Patino was present for the SANE’s examination of Appellant at the Methodist

Specialty and Transplant Hospital. He explained that the SANE placed the evidence she

collected in individual bags, which she then sealed and signed or initialed. Patino testified

that after the examination, the SANE gave the bagged evidence to the officer. He

explained that once those items are received, they are placed in the evidence room, which

involves going inside the evidence room and writing in a binder the case number, offense,

description of the evidence, and the locker number used. Patino stated that once

evidence is placed in the evidence locker, it stays there until needed.

SANE Shannon Murphy testified that she performed a physical examination of

Appellant and collected swabs and evidence during her examination. She listed what she

collected in her report and she sealed and labeled the items collected, which were

packaged separately. Murphy’s report, which was admitted into evidence as State’s

Exhibit 17, lists a case number of “2022-BCSO-012571.” It reflects that she collected

bilateral hand swabs, fingernail swabs, pubic hair combings, buccal swabs, penile swabs,

underwear, and peri-oral swabs during her examination.4 She testified that page four of

4 Appellant signed a consent form authorizing the physical examination and the collection of

evidence. The form, which is included in Murphy’s report, states, “The said samples taken from my body will be released to the investigating law enforcement agency: BCSO, in furtherance of their investigation.”

3 the report, entitled Sexual Assault Evidence Release Form, was what “I get the officer

that’s leaving with the kit to sign. So I release to the officer one kit and one bag of clothing

and have him sign.” The report states, “Evidence kit sealed and labeled by: S. Murphy,

RN CA-SANE.” The report includes a “Sexual Assault Evidence/Film Release Form”

stating that evidence described as “1 x kit, 1 x bag of clothing” in agency/case number

BCSO#2022-BCSO-012571 was released by S. Murphy to “Patino #4592.”

Beginning of Chain of Custody: Evidence Collected from E.B.

Melissa Gonzalez, a SANE at the Children’s Hospital of San Antonio, testified that

she examined E.B. Her report of the examination was admitted into evidence as State’s

Exhibit 16. The report reflects that the affiliated law enforcement agency is “BCSO” and

the case number is “2022-012571.” Gonzalez testified that she collected two known

saliva swabs, two anal swabs, two penile/scrotal swabs, and E.B.’s underwear. She

packaged each swab individually and packaged clothing separately from the swabs.

The State did not elicit testimony from Gonzalez regarding what she did with the

evidence after she collected and packaged it. For example, she did not testify that she

placed an identifying name, number, or label on the evidence to help identify it, nor did

she testify as to the hospital’s standard protocols for labeling and securing evidence.

Gonzalez’s report reflects that she placed the evidence in a sealed bag in the evidence

storage room on June 23, 2022.

End of Chain of Custody: Criminal Investigation Laboratory

State’s witness Jamie Pomykal, a forensic scientist for the Bexar County Criminal

Investigation Laboratory, testified that she tested evidentiary items related to this case.

4 Pomykal prepared a forensic DNA report, which the State offered as State’s Exhibit 18,

reflecting the test results. Appellant objected to the introduction of the report, arguing,

“There has been absolutely no testimony by anyone establishing that the swabs are the

same swabs that came from [the hospital].” The trial court stated that “there needs to be

more questioning as to how those link up in terms of case numbers, ID numbers, whatever

. . . .”

Pomykal then testified that the crime lab linked a criminal investigation laboratory

(CIL) number to the case number assigned by the law enforcement agency. Pomykal’s

report included both the agency case number assigned by the Bexar County Sheriff’s

Office (22012571) and the lab’s CIL number, along with the complainant’s name (E.B.)

and the suspect’s name (Appellant). The report stated that the evidence was received

from Ruben R. Cruz from the Bexar County Sheriff’s Office on June 28, 2022. Pomykal

testified that the lab’s evidence receiving section itemizes evidence when it is submitted

to the lab. Counsel for the State began to question Pomykal about specific items of

evidence referenced on her report. Appellant’s counsel objected, stating, “Again, Your

Honor, I’m going to object as to her reading from the report at this time about the items

she’s received before we have a ruling as to whether those items have been properly

authenticated and chain of custody has been established.” Counsel for the State

responded that the SAPD5 number, which was written on both SANE exam reports,

matched the lab’s CIL number. The trial court admitted State’s Exhibit 18 into evidence.

5 The record indicates that the referring agency was the BCSO, not the SAPD.

5 Pomykal then testified regarding the contents of the evidence she received for

testing. When asked who labeled the tape-sealed sexual assault evidence collection kits

as coming from E.B. and Appellant, Pomykal answered that the hospital staff labeled the

kits. She testified that the items from E.B. consisted of penile/scrotal swabs, anal swabs,

underwear, and a known standard. Pomykal went on to testify that human DNA

consistent with two contributors was observed on the anal swabs and underwear taken

from E.B. Pomykal concluded that the DNA analysis provided very strong support for the

proposition that Appellant is a contributor of the DNA on those items.

Rule 901

Under Texas Rule of Evidence 901, the proponent of the results of scientific

testing, such as the DNA test results at issue here, is required to establish a chain of

custody in order to authenticate that evidence. TEX. R. EVID. 901; Avila v. State, 18

S.W.3d 736, 739 (Tex. App.—San Antonio 2000, no pet.). The chain of custody is

conclusively established if an officer testifies that he seized an item of physical evidence,

tagged it, placed an identifying mark on it, placed the evidence in storage, and retrieved

the item for trial. Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997) (en

banc). In the same way, when evidence is sent to a laboratory for analysis, to conclusively

establish the chain of custody, the proponent must introduce testimony showing the

laboratory handled the evidence in the same way. See Medellin v. State, 617 S.W.2d

229, 232 (Tex. Crim. App. [Panel Op.] 1981). A chain of custody is sufficiently

authenticated when the State establishes “the beginning and the end of the chain of

custody, particularly when the chain ends at a laboratory.” Mitchell v. State, 419 S.W.3d

655, 659–60 (Tex. App.—San Antonio 2013, pet. ref’d) (quoting Martinez v. State, 186

6 S.W.3d 59, 62 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d)). However, Rule 901 does

not require any particular standard of proof but instead requires only that the trial court be

satisfied that the evidence is genuine. Garner v. State, 939 S.W.2d 802, 805 (Tex. App.—

Fort Worth 1997, pet. ref’d).

We conclude that the State produced evidence to establish the beginning and the

end of the chain of custody as to material collected from Appellant. See Caddell v. State,

123 S.W.3d 722, 727–28 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (State

established that swabs taken from complainant were same items tested for DNA through

evidence explaining process from collection and labeling to arrival at lab). However, the

material collected from E.B. presents a closer question, owing to the lack of testimony

regarding any identifying marks placed on the evidence by the nurse who collected it or

any procedures followed to transfer the evidence from the hospital to the lab for testing.

Bearing in mind that “Rule 901 only requires a showing that satisfies the trial judge that

the item in question is what the State claims,” Avila, 18 S.W.3d at 740, we conclude that

the testimony elicited by the State was enough for the trial court to have found that the

items Pomykal tested were what the State purported them to be, i.e., the items collected

from E.B. by the SANE. See Villarreal v. State, No. 04-15-00290-CR, 2016 Tex. App.

LEXIS 8891, at *6–7 (Tex. App.—San Antonio Aug. 17, 2016, no pet.) (mem. op., not

designated for publication) (beginning and end of chain of custody sufficiently established

by officer’s testimony that he saw nurse perform blood draw, observed nurse seal vials,

and filled out checklist regarding procedure, and toxicologist’s testimony that she matched

information on form to information on blood vial labels). Having found no abuse of

discretion, we overrule Appellant’s first issue.

7 Jury Charge Error

In his second issue, Appellant contends that the trial court erred when it overruled

his objection to the jury charge regarding the third allegation of a predicate act that formed

the basis for the continuous sexual abuse charge. We review a claim of alleged charge

error by determining whether the charge was erroneous, and if it was, we conduct a harm

analysis. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).

To convict a person of continuous sexual abuse of a young child, the State must

show that (1) during a period that is thirty or more days in duration, the defendant

committed at least two acts of “sexual abuse,” regardless of whether the acts of sexual

abuse are committed against the same victim; and (2) for each act that occurred, the

defendant was at least seventeen years old and the victim was a child less than fourteen

years old. See TEX. PENAL CODE ANN. § 21.02(b). The statute does not require that the

exact dates of abuse be proven. Brown v. State, 381 S.W.3d 565, 574 (Tex. App.—

Eastland 2012, no pet.). Moreover, the jury need not agree unanimously on which specific

acts of sexual abuse occurred or the exact date of those acts. TEX. PENAL CODE ANN.

§ 21.02(d).

The application paragraph of the jury charge included three predicate acts of

sexual abuse, as follows:

Now, if you find from the evidence beyond a reasonable doubt that in Bexar County, Texas, the defendant, [Appellant], did then and there, during a period that was thirty (30) or more days in duration, to-wit: from on or about the 15th Day of April, 2022, through the 22nd Day of June, 2022, when [Appellant] was seventeen (17) years of age or older, commit two or more acts of sexual abuse against a child younger than fourteen (14) years of age, namely:

8 On or about the 22nd day of June, 2022, [Appellant] did intentionally or knowingly cause the penetration of the anus of [E.B.], a child who was younger than 14 years, by [Appellant’s] sexual organ; On or about the 15th day of April, 2022, [Appellant] did intentionally or knowingly engage in sexual contact with [E.B.], a child, by touching part of the genitals of [E.B.] with the intent to arouse or gratify the sexual desire of any person; On or about the 15th day of April, 2022, [Appellant] did intentionally or knowingly engage in sexual contact with [E.B.], a child, by causing [E.B.] to touch part of the genitals of [Appellant] with the intent to arouse or gratify the sexual desire of any person; Then you will find the defendant guilty of the offense of continuous sexual abuse of a young child as charged in the indictment.

Appellant asserts that “there was no evidence that Appellant ever caused E.B. to touch

his genitals” as set forth in the third allegation of a predicate act.

At trial, E.B. testified that Appellant used his hand to rub E.B.’s “front part,” or penis,

and his “back part,” or buttocks, on at least three occasions and that Appellant’s “front

part” touched E.B.’s “back part.” E.B. also testified that Appellant’s penis went inside

E.B.’s buttocks. Additionally, E.B.’s mother testified that E.B. told her that “[Appellant’s]

penis touched [E.B.’s] bottom, his butt, and he had touched his front part.” E.B. told his

mother it had happened on the day of his outcry, which was June 22, 2022, and also “that

it had happened before.” From her conversation with E.B., E.B.’s mother understood that

the abuse began around November or December. The SANE who examined E.B.

testified that E.B. reported to her that Appellant “put his front private” in E.B.’s backside.

E.B. told the nurse that Appellant did these things “more than one time.” E.B. decided to

tell his mother about the abuse because Appellant “kept on doing it.”

Thus, contrary to Appellant’s claim, the record contains evidence that Appellant

intentionally or knowingly caused E.B.’s body to touch Appellant’s genitals. See TEX.

9 PENAL CODE ANN. § 21.11(c)(2) (definition of sexual contact includes “any touching of any

part of the body of a child . . . with the anus, breast, or any part of the genitals of a person.”

(emphasis added)). Moreover, we reject Appellant’s claim that the State has conflated

the third predicate act, the allegation that Appellant caused E.B. to touch Appellant’s

genitals, with the first predicate act, the allegation that Appellant caused the penetration

of E.B.’s anus. Based on the evidence presented, a jury could rationally conclude that

Appellant caused E.B. to touch Appellant’s genitals in an act of abuse that was separate

from the act of anal penetration. Accordingly, we conclude that the inclusion of the

challenged predicate act in the jury charge was not erroneous and overrule Appellant’s

second issue.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment.

Judy C. Parker Justice

Do not publish.