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Click here for the full text of this decision FACTS:Gilbert Anthony Martinez, driving a black Cadillac with a white right-front panel, saw his girlfriend, April Dykes, in a car with another man in November 2000. Though she first refused to get out of the car, she eventually did, getting into the car with Martinez and two other men. Martinez drove toward a nearby park. Shortly after they left, two people who lived in separate houses near the park heard three gunshots coming from the park. One of those people saw three men running out of the park and getting into an older-model dark car with a light-colored front panel. The other of those people also saw a dark vehicle with a light right-front panel. The two people ran to the park, where they found Dykes near death. Dykes died before police arrived. A police sergeant bagged Dykes’ hands and requested fingernail scrapings from the medical examiner. Dr. Harminder Narula from the medical examiner’s office performed the autopsy on Dykes’ body, which confirmed that she was shot three times in the chest, once at close range. After receiving a Crime Stoppers report that Martinez was the shooter, a DNA analysis of the scrapings indicated that Martinez could not be excluded as one of the ones whose material was found under Dykes’ fingernails. In January 2001, Martinez’s ex-girlfriend, Monica Parra, said that Martinez had initially told her Dykes was killed in a drive-by shooting, but he then admitted that he had killed her. In November 2001, Martinez’s then-girlfriend, Maya Blakely, said Martinez repeatedly told her Dykes was killed by a jealous ex-boyfriend. He later confessed to her that he shot April, and he took Blakely to the park to show her where it happened. Blakely called the police and Martinez was arrested. At trial, the judge announced that “the rule” was in place and that witnesses should not talk to one another about their testimony. Parra and Blakely arrived after the judge’s admonition, and talked to each other in the hallway during the trial. The police sergeant testified about how he bagged Dykes’ hands and asked for a fingernail-scrapings analysis from the medical examiner. The police sergeant testified that the fingernail scrapings were then transferred to the police department’s property room, and received by Hawan Wilson in the centralized evidence receiving division. Wilson did not testify at Martinez’s trial. The sergeant testified that he got a search warrant that allowed him to bring Martinez to the crime lab and watched while Dr. Joseph Chu took a blood sample from Martinez. Narula was unavailable to testify at trial, so a deputy chief medical examiner testified instead about the autopsy reports. This witness, Dr. Dwayne Wolf, explained how Dykes’ body was given a unique medical number and that all samples taken from her, including the fingernail scrapings, were given that same number. Wolf also explained exactly how the sample was collected and preserved. A member of the crime lab team, Christy Kim, testified that she received the fingernail scrapings contained in the same packaging as Wolf had described. This worker also received Martinez’ blood sample and DNA extracted from both sources. One set of samples was sent to Chu for analysis, while another was sent to Identigene by Connie Dieringer. An Identigene worker, Robin Guidry, testified that the samples were received by Jennifer McCue from Connie Dieringer; internal reports confirmed the name of each. The samples were given unique identification numbers and placed in frozen storage. Guidry explained how she retrieved the samples from the freezer and conducted a DNA analysis, comparing the scrapings to Martinez’s blood-stain cards. Guidry concluded that while one of the other men earlier seen with Dykes could be ruled out as being the source of the scrapings, Martinez could not. Martinez was convicted of Dykes’ murder and sentenced to life in prison. On appeal, Martinez contends the chain of custody of the DNA samples was inadequately established. He also argues the trial court erred in not striking Parra’s and Blakely’s testimony after learning that they had spoken to one another. Martinez also raises a few hearsay issues. HOLDING:Affirmed. Considering Martinez’s claim that the DNA’s chain of custody was not properly established, the court agrees that although there was no direct testimony by Narula, who actually performed the autopsy, or Hawan Wilson, who transported the evidence within the police department, the testimony of the police sergeant, Wolf and Kim established the chain of custody of the fingernail scrapings from the scene to the medical examiner, and then to the crime lab. In addition, Kim and Guidry established the chain of custody from the crime lab to the Identigene lab. The court finds that any gaps in the chain of custody were minor and went to the weight of the evidence rather than to its admissibility. Also, in the absence of any evidence of tampering, the chain of custody evidence was sufficient for the state to meet its burden. The court next considers whether Parra’s and Blakely’s testimony should have been struck. The court agrees that the pair of witnesses violated the rule. However, the court points out that while their respective testimony corroborated one another � they both testified that Martinez told them he killed Dykes � the circumstances from which each confession came were different and revealed separate facts. There was no evidence that either woman’s testimony was influenced by the other, and both had vastly different experiences to tell. There were few details, other than the confession, that the two women shared that would raise doubts about the veracity of each one’s testimony. Martinez cannot, therefore, show harm from any violation of the rule. As for Martinez’s hearsay arguments, the court says that the trial court did not err in allowing the sergeant to testify about the information he received from the Crime Stoppers report. The Crime Stoppers tip was offered to show how the sergeant began to suspect Martinez, not to prove that Martinez was guilty. Consequently, his testimony was not hearsay. The man Dykes was initially with the night she was killed was allowed to testify about what Dykes said to him before she got out of his car to go with Martinez, and what her state of mind was. The court finds the statements admissible as an exception to hearsay under Texas Rule of Evidence 803(3), as relevant to Dykes’ state of mind. OPINION:Laura Carter Higley, J.; Nuchia, Jennings and Higley, JJ.

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