Daniel Ray Gallow v. State of Texas ( 2008 )

Opinion filed September 4, 2008

Opinion filed September 4, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-07-00126-CR

                                                     __________

DANIEL RAY GALLOW, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 58th District Court

 Jefferson County, Texas

Trial Court Cause No. 91705

                                              M E M O R A N D U M   O P I N I O N

The jury found that Daniel Ray Gallow committed the offense of aggravated sexual assault.  The trial court found that the enhancement allegations were true, and it assessed Gallow=s punishment at confinement for fifty years.  The trial court also made an affirmative finding on the use of a deadly weapon.  We affirm.

There is no challenge to the sufficiency of the evidence.  Gallow complains in his first issue on appeal that a juror slept during part of his trial and that the juror, therefore, became Adisabled@ as outlined in Tex. Code Crim. Proc. Ann. art. 36.29 (Vernon Supp. 2007).  We do not reach this issue because Gallow did not raise an objection in the trial court and has, therefore, failed to preserve the issue for review.  Tex. R. App. P. 33.1.  Even if Gallow had not waived the issue, he could not prevail upon it. He relies upon United States v. Freitag, 230 F.3d 1019 (7th Cir. 2000). There, one of the jurors had gone to sleep.  In declining to find error for not removing the juror, the court noted that there was no evidence that the juror missed large parts of the trial and neither was there any evidence that the parts missed were crucial.  The same is true in this case.  We overrule Gallow=s first issue on appeal.

In his second issue on appeal, Gallow asserts that the trial court committed error when it overruled his objections to the admissibility of DNA evidence.  His complaint is directed at the chain of custody.  Most questions concerning care and custody of evidence go to the weight attached to the evidence and not to the admissibility of the evidence unless there is some evidence of tampering.  Alvarez v. State, 857 S.W.2d 143, 147 (Tex. App.CCorpus Christi 1993, pet. ref=d); see also Tex. R. Evid. 901(a) (authentication requirements satisfied by Aevidence sufficient to support a finding that the matter in question is what its proponent claims@). 

Julia Robertson, the sexual assault nurse examiner who collected evidence for the rape kit in this case, placed the items of evidence in appropriate containers and sealed them.  One of the chemists who received the items testified that, although she would have used red evidence tape to seal the evidence, it was sealed when she received it.  Other persons who performed laboratory or DNA tests testified that the containers were sealed when they received them. Nevertheless, Gallow claims that there is evidence of tampering.  His claim apparently is based in part upon the testimony regarding the red evidence tape and in part upon the fact that not each and every person in the chain of custody testified.  We have examined the record and can find no evidence to suggest that anyone had tampered with the evidence.  Gallow=s claims go to the weight of the testimony and not to the admissibility.  See Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997).  We overrule Gallow=s second issue on appeal.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

September 4, 2008                                                                   CHIEF JUSTICE

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.