Zachary Dean Jolliff v. the State of Texas

AFFIRMED and Opinion Filed April 13, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-01159-CR
ZACHARY DEAN JOLLIFF, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 59th District Court
Grayson County, Texas
Trial Court Cause No. 071936
MEMORANDUM OPINION
Before Chief Justice Burns and Justices Smith and Breedlove
Opinion by Justice Breedlove
Appellant Zachary Dean Jolliff was convicted of burglary of a habitation with
the intent to commit murder or aggravated assault and sentenced to 75 years in
prison. Appellant now appeals, complaining that the State failed to establish a
proper chain of custody for fourteen items admitted into evidence. We affirm the
trial court’s judgment.
I. BACKGROUND
Ariel Holley was severely injured when an attacker broke into her home in the
middle of the night and then attempted repeatedly to break her neck and suffocate
her. Holley told police that appellant was the man who attacked her. Appellant was
then indicted for the crime of burglary of a habitation with the intent to commit
(1) murder or aggravated assault (Count One); or (2) sexual assault (Count Two).
He pleaded not guilty, and the case was tried before a jury on December 3, 2021.
At trial, ten of the State’s witnesses testified about the chain of custody for the
fourteen items appellant challenges in this appeal:
 Officer Jacob Shoemate: an officer with the Denison Police Department who
responded to Holley’s 911 call.
 Officer Aaron Albarenga: an officer with the Denison Police Department who
responded to Holley’s 911 call.
 Ranger Brad Oliver: a Texas Ranger with the Texas Department of Public
Safety, now retired, who assisted in the investigation and obtained various
evidentiary samples from both victim and appellant.
 Detective Steven Kyle Mackay: a detective with the Denison Police
Department who assisted in the investigation.
 Kathleen McRoy: a forensic scientist with the DPS lab who analyzed various
hair samples as well as the buttons found at the scene.
 Detective Stuart Prigge: a detective with the Denison Police Department who
assisted with the investigation of the case and interviewed appellant and
Holley.
 Detective Tom Unerfusser: a detective with the Denison Police Department
in the property and evidence room who oversaw the receipt and logging and
of the evidence in the case and also supervised the exchange of evidence with
the DPS lab.
 Courtney Wassung: a fingerprint analyst with the DPS lab who analyzed the
print on the front porch lightbulb in comparison to the known print of
appellant.
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 Jenna Hamann: a serologist with the DPS lab who examined the victim’s shirt
for the presence of bodily fluid.
 Kristen Cossota: a forensic scientist with the DNA section of the DPS lab who
conducted DNA analyses on various items of evidence.
The jury found appellant guilty on Count One1 and sentenced him to 75 years
in prison. Appellant filed a motion for new trial on December 28, 2021, asserting
that the verdict was contrary to the law and the evidence. This motion was overruled
by operation of law. TEX. R. APP. P. 21.8.
Appellant appealed the verdict on December 28, 2021. In one issue, appellant
complains that the trial court abused its discretion in admitting physical evidence
where the State failed to establish a proper chain of custody. In response, the State
argues that the trial court did not abuse its discretion in denying appellant’s objection
to the chain of custody because any break in the chain was minor and went to the
weight of the evidence, not its admissibility. Alternatively, the State argues that
even if the trial court erred, the error was harmless.
II. STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court’s decision to admit or exclude evidence for abuse of
discretion. See Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018);
Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). A trial court abuses
1
As to Count One, the jury charge did not require the jury to agree unanimously on which specific
felony offense other than theft appellant intended to commit, or committed. The jury was only required to
agree unanimously that the appellant intended to commit, committed, or attempted to commit murder or
aggravated assault.
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its discretion when its decision lies outside the zone of reasonable disagreement.
Beham, 559 S.W.3d at 478; Gonzalez, 544 S.W.3d at 370.
A chain of custody is conclusively proven if an officer is able to identify that
he or she seized the item of physical evidence, put an identification mark on it, placed
it in the property room, and then retrieved the item being offered on the day of trial.
Morgan v. State, No. 05-94-01004-CR, 1995 WL 259220, at *1 (Tex. App.—Dallas
May 3, 1994, pet. ref’d) (mem. op., not designated for publication) (citing Stoker v.
State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989), overruled on other grounds by
Horton v. California, 496 U.S. 128 (1990); Luna v. State, 493 S.W.2d 854, 856 (Tex.
Crim. App. 1973); and Elliott v. State, 450 S.W.2d 863, 864 (Tex. Crim. App.
1970)). A chain of custody is sufficiently authenticated when the State establishes
the beginning and the end of the chain, particularly when the chain ends at a
laboratory. Simmons v. State, No. 05-11-01267-CR, 2013 WL 1614114, at *6 (Tex.
App.—Dallas Feb. 20, 2013) (mem. op., not designated for publication) (citing
Martinez v. State, 186 S.W.3d 59, 62 (Tex. App.—Houston [1st Dist.] 2005, pet.
ref’d)). Absent proof of tampering, most problems with the chain of custody do not
affect the admissibility of evidence, but rather go to the weight of the evidence. Id.(citing Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997)).
Further, Texas does not require a showing of chain of custody for admission
of evidence that is readily identifiable. Hammett v. State, 578 S.W.2d 699, 708 (Tex.
Crim. App. 1979), cert. dism’d, 448 U.S. 725 (1980). A chain of custody showing
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is required when only scientific tests or analyses can distinguish the evidence’s
relevant characteristics. Davis v. State, 831 S.W.2d 426, 443 (Tex. App.—Austin
1992, pet. ref’d)) (citing Hammett, 578 S.W.2d at 708 and Edlund v. State, 677
S.W.2d 204, 210 (Tex. App.—Houston [1st Dist.] 1984, no pet.)). “The State is not
obligated to prove chain of custody on such items as clothing.” Belcher v. State, 661
S.W.2d 230, 233 (Tex. App.—Houston [1st Dist.] 1983, pet. ref’d) (citing
Hackbarth v. State, 617 S.W.2d 944, 947 (Tex. Crim. App. [Panel Op.] 1981)).
III. DISCUSSION
Appellant objects to 14 separate items, shown in the table below.
SX 32 Envelope of Evidence DPS Trace Analysts
SX 242 Bankers Box
SX 24-A Envelope from DPS
SX 24-V-1 Buccal Swab from Victim’s Mouth
SX 24-4 Buccal Swab from Appellant’s Mouth
SX 24-3 Hair from Victim’s Mouth
SX 28 Front Porch Lightbulb
SX 22 Head Hair of Victim (4/2/20)
SX 21A Button – Collected 1/2/20
SX 21B Button – Collected 1/3/20
SX 21C Button – Collected 1/15/20
SX 24-6 Bag Containing Victim’s Shirt
SX 24-6-A-1 Victim’s Shirt
SX 8 Appellant’s White Shirt
2
This item has no independent evidentiary significance beyond establishing the chain of custody for
the items contained within it. The parties acknowledged at trial that the box was simply being labeled for
identification purposes and was being admitted for chain of custody only, not as a standalone item of
evidence. Therefore, we will not address the bankers box separately. Rather, we will address the item
along with the chain of custody for the items contained within it. Similarly, the Envelope from DPS (SX24-
A) and the Bag Containing Victim’s Shirt (SX 24-6) also have no independent evidentiary significance
beyond establishing the chain of custody for the items contained within them. Therefore, we will address
these containers along with the chain of custody for the items contained within them.
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We note at the outset that appellant made no allegation in the trial court that
any of the objected-to items had been tampered with, and appellant makes no such
argument in his brief before this Court.3 Because appellant did not raise the issue of
tampering, any issues with the chain of custody established by the State go to the
weight of the evidence, not its admissibility. See Bird v. State, 692 S.W.2d 65, 70
(Tex. Crim. App. 1985) (internal citations omitted).
A. Readily Identifiable Items
Appellant objects to the admissibility of five items of clothing: the three
buttons (SX 21A, 21B, and 21C)4, appellant’s shirt (SX 8), and the victim’s shirt
(SX 24-6-A-1).
1. Buttons
Shoemate testified that he observed one of the buttons on the floor of the
bathroom, and the jury was able to review footage from Shoemate’s body camera
showing the button in the location where Shoemate found it. Additionally,
3
Appellant broadly argues in his closing statement that the crime scene was not properly secured and
that people “could have been going in and out of that house” after the crime. However, he did not raise
such objections to the trial court and request a ruling, or raise the argument in his brief before this Court;
further, even if he had, that objection would have only impacted the buttons collected on January 3, 2020,
and January 15, 2020, and the lightbulb collected on January 3, 2020, as the remaining evidence was either
collected immediately after the crime occurred or was not collected at the crime scene. Therefore, to the
extent this argument could be broadly construed as raising the issue of tampering with regard to the later-
collected buttons and lightbulb, we conclude that it was not properly preserved. See TEX. R. APP. P.
33.1(a)(1)(A); Clark v. State, 365 S.W.3d 333, 339 (to preserve error for appellate review, an appellant
must show that he objected in the trial court).
4
We acknowledge that buttons are not in themselves items of clothing; however, they are readily
identifiable without scientific tests or analysis in the same way as a complete article of clothing. Therefore,
we analyze the buttons under the same framework as the other clothing items.
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Albarenga testified that he received the shirt that appellant was wearing on the night
of the attack from appellant’s wife, and at that time he was able to observe the
buttons remaining on the shirt. McRoy also provided her expert opinion that the
buttons were visually similar to the buttons observed on the suspect’s shirt. Prigge
and McRoy both testified to several specific characteristics of the buttons, including
their size, color, texture, and pearlescent appearance. The jury was also able to view
body camera footage from Albarenga showing the buttons on the shirt as well as the
missing buttons. Based on these pieces of evidence, the buttons were readily
identifiable, and the jury could have made the determination that the buttons
collected at the scene were the same buttons as they observed in the body camera
footage from the two officers. Therefore, the trial judge did not err in admitting the
buttons. See Anderson v. State, 504 S.W.2d 507, 510 (Tex. Crim. App. 1974)
(holding that the state is not required to prove chain of custody if (1) the evidence is
easily identifiable as a particular item; and (2) direct evidence shows that the same
item was recovered at the scene).
Further, Prigge testified that he collected the buttons at the scene and delivered
them to Unerfusser in the evidence room, and Unerfusser testified that they remained
with him in the locked evidence room until he delivered them to the lab. McRoy
testified that she received the buttons in the sealed envelope. Once the lab returned
them in the sealed envelope, the buttons remained in that condition until they were
delivered to the courthouse on the day of trial. Because an item’s admissibility
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requires only the beginning and end links in the chain of custody, the trial court did
not err in admitting the buttons. See Simmons, 2013 WL 1614114, at *6 (citing
Martinez, 186 S.W.3d at 62).
2. Appellant’s shirt
Albarenga testified that he received the shirt that appellant was wearing on
the night of the attack from appellant’s wife and placed the shirt into an evidence
bag which he delivered to Shoemate. Albarenga testified that the wife gave him the
shirt specifically after he requested the items of clothing appellant had been wearing
that evening. The jury was also able to view body camera footage from Albarenga
showing the shirt, as well as photos and security camera footage showing appellant
wearing the shirt the night of the attack. Based on these pieces of evidence, the shirt
was readily identifiable, and the jury could have made the determination that the
shirt introduced into evidence was the same shirt as they observed in the body
camera footage, surveillance footage, and photographs. Therefore, the trial judge
did not err in admitting the appellant’s shirt. See Anderson, 504 S.W.2d at 510.
Further, after Albarenga collected the shirt from the scene of appellant’s
arrest, the shirt was placed inside a brown paper bag and delivered to the evidence
room as testified to by Albarenga and Unerfusser, and McRoy testified that she
received the sealed bag at DPS which Unerfusser had delivered. The bag was then
resealed and returned to the evidence room until it was delivered to the trial court
and unsealed on the day of trial. This testimony establishes both the beginning and
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end of the chain of custody for appellant’s shirt. Because we have both the beginning
and the end of the chain of custody for this item, the trial court did not err in
admitting it into evidence. See Simmons, 2013 WL 1614114, at *6 (citing Martinez,
186 S.W.3d at 62).
Because the buttons and appellant’s shirt are readily identifiable based on the
evidence submitted, and testimony established where the items were collected, no
chain of custody is required to establish their admissibility. See Anderson, 504
S.W.2d at 510; Belcher, 661 S.W.2d at 233; Hackbarth, 617 S.W.2d at 947. Further,
because the beginning and the end of chain of custody was established for the buttons
and appellant’s shirt, the trial court did not err in admitting these items. See
Simmons, 2013 WL 1614114, at *6 (citing Martinez, 186 S.W.3d at 62). We
overrule appellant’s issues regarding items SX 21A, 21B, 21C, and SX 8.
3. Victim’s shirt
No witness testified from personal knowledge as to where or when victim’s
shirt was collected. Further, although photos and video of the victim’s clothing were
available to the jury, no testimony established that the shirt in the bankers box was
the same shirt that the victim was wearing the night of the attack or otherwise
identified the shirt. Because the victim’s shirt was not readily identifiable based on
the evidence presented, and because no testimony established where the item was
collected, the State was required to demonstrate chain of custody to prove
admissibility. See Anderson, 504 S.W.2d at 510.
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The only witness testimony regarding the chain of custody of the victim’s shirt
concerned its receipt at the lab in the white bankers box and its return to the evidence
room. However, both the beginning and the end of chain of custody are necessary
for an item’s admissibility to be established. See Simmons, 2013 WL 1614114, at
*6 (citing Martinez, 186 S.W.3d at 62). Therefore, the court erred in admitting the
victim’s shirt (SX 24-6-A-1), and we sustain appellant’s objection as to the
admissibility of this item.
However, even though the trial court improperly admitted the victim’s shirt,
we hold that such error was harmless because the other evidence of the appellant’s
guilt is overwhelming independent of the erroneously admitted shirt. See Anderson
v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986 (internal citations omitted).
B. Items Requiring Chain of Custody
The remaining items of evidence are not readily identifiable and therefore
require the establishment of chain of custody. See Belcher, 661 S.W.2d at 233.
Because an item’s admissibility requires only the beginning and end links in the
chain of custody, we will evaluate each item of evidence primarily to determine
whether those links were present for each item. See Simmons, 2013 WL 1614114,
at *6 (citing Martinez, 186 S.W.3d at 62).
1. SX 32 – Envelope of evidence DPS trace analysts
This is an envelope that was prepared by the trace analysts in the DPS crime
lab in Garland, Texas. It originally contained seven head hairs from the right sleeve
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of appellant’s shirt as well as the known head-hair standards from the victim and
appellant which were repackaged by the trace analysts at the lab. It appears from
the record that appellant’s objection was targeted at the items of evidence contained
within the envelope and not the envelope itself. Therefore, we evaluate whether
there was evidence in the record to establish chain of custody for (1) the seven head
hairs from appellant’s shirtsleeve; (2) the head-hair standards from the victim;5 and
(3) the head-hair standards from appellant.
a. Head hairs from appellant’s shirtsleeve
The hairs from appellant’s shirtsleeve were originally noticed by Albarenga
after he collected appellant’s shirt from appellant’s wife. According to his
testimony, he unrolled the right sleeve and saw the hair wrapped around the cuff of
the sleeve. He then put the shirt in a brown bag and gave it to Shoemate. Prigge
testified that he examined the shirt once it was checked into evidence and found the
hair on the cuff. He retrieved the hairs using tweezers while wearing gloves, and
then put them in a manila envelope to be sent to the lab. This testimony establishes
the beginning of the chain of custody for this item.
5
Trial testimony was provided regarding two different sets of head-hair standards for the victim–the
first, provided in January 2020 contained an insufficient number of hairs, so a second was collected on
April 2, 2020. The record is unclear as to which standard was included in this envelope. Therefore, we
will address only the second standard as the first was unusable and not relied upon by the State. The second
standard is addressed in detail in a separate section below.
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McRoy testified that she analyzed the hairs recovered from the sleeve while
at the lab. She then forwarded them to the DNA section of the lab. Cossota testified
that she also analyzed the hairs.
Unerfusser testified that on September 8, 2021, he drove to the lab to retrieve
the sample. The sample was returned in an envelope (SX 24-A) inside the sealed
bankers box (SX 24) that Unerfusser had previously packaged up for delivery to the
lab. This testimony establishes the end of the chain of custody for this item. Because
we have both the beginning and the end of the chain of custody for this item, the trial
court did not err in admitting it into evidence. See id. (citing Martinez, 186 S.W.3d
at 62).
b. Head-hair standard from appellant
Oliver testified that he obtained the head-hair standards from appellant by
using sterile tweezers while wearing latex gloves to remove hairs from multiple
locations on appellant’s head. He then put the sample into a zip bag which he put
into a separate brown bag envelope, sealed up, and delivered to Mackay. This
testimony establishes the beginning of the chain of custody for this item.
McRoy testified that she received the head-hair standard from appellant from
an envelope (SX 24A) inside the sealed bankers box (SX 24) at the lab and analyzed
them in comparison to the hair removed from the victim’s mouth. She then
forwarded the samples to the DNA section of the lab. Cossota testified that she then
analyzed the hair in the victim’s mouth.
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Unerfusser testified that on September 8, 2021, he drove to the lab to retrieve
the head-hair standard. The sample was returned in an envelope (SX 24-A) inside
the sealed bankers box (SX 24) that Unerfusser had previously packaged up for
delivery to the lab. This testimony establishes the end of the chain of custody for
this item. Because we have both the beginning and the end of the chain of custody
for this item, the trial court did not err in admitting it into evidence. See id. (citing
Martinez, 186 S.W.3d at 62).
2. SX 24-V-1 – Buccal swab from victim’s mouth
Prigge testified that he took buccal swabs from the victim’s mouth while
wearing gloves. He testified that he placed the swabs back in the original package,
sealed them up, and sent them to the lab. This testimony establishes the beginning
of the chain of custody for this item.
Unerfusser testified that on September 8, 2021, he drove to the lab to retrieve
the sample. The sample was returned in a sealed bankers box (SX 24) that
Unerfusser had previously packaged up for delivery to the lab. This testimony
establishes the end of the chain of custody for this item. Because we have both the
beginning and the end of the chain of custody for this item, the trial court did not err
in admitting it into evidence. See id. (citing Martinez, 186 S.W.3d at 62).
3. SX 24-4 – Buccal swab from appellant’s mouth
Oliver testified that he obtained the buccal swab of appellant’s mouth by using
two sterile swabs while wearing latex gloves to swab the inside of appellant’s mouth.
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He then put the swabs back into their original container, placed the container into a
brown envelope that he sealed with tape and then delivered to Mackay. This
testimony establishes the beginning of the chain of custody for this item.
Unerfusser testified that he retrieved the sample from the evidence locker on
January 9, 2020. Unerfusser testified that on September 8, 2021, he drove to the lab
to retrieve the sample. The sample was returned in a sealed bankers box (SX 24)
that Unerfusser had previously packaged up for delivery to the lab. This testimony
establishes the end of the chain of custody for this item. Because we have both the
beginning and the end of the chain of custody for this item, the trial court did not err
in admitting it into evidence. See id. (citing Martinez, 186 S.W.3d at 62).
4. SX 24-3 – Hair from victim’s mouth
Shoemate testified at trial that he personally observed the nurse at the hospital
collect the hair from the victim’s mouth, and that once collected, Shoemate
compared the hair to the victim’s hair, then placed it inside an envelope, logged it as
evidence, put it inside a sealed brown paper bag, and then delivered it to the evidence
room. This testimony is corroborated by the victim’s mother, who observed both
the nurse remove the hair from the victim’s mouth and Shoemate leave with the hair
in his possession. This testimony establishes the beginning of the chain of custody
for this item.
The sample was delivered by Shoemate to the evidence room the same day.
Unerfusser testified that he personally took the sample to the lab on January 17,
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2020. McRoy testified that she received the sealed banker’s box (SX 24) at the lab
and analyzed the hair in comparison to appellant’s head-hair standard while at the
lab. She then forwarded them to the DNA section of the lab. Cossota testified that
she then analyzed the hair in the victim’s mouth.
Unerfusser testified that on September 8, 2021, he drove to the lab to retrieve
the sample. The sample was returned in an envelope (SX 24-A) inside the sealed
bankers box (SX 24) that Unerfusser had previously packaged up for delivery to the
lab. This testimony establishes the end of the chain of custody for this item. Because
we have both the beginning and the end of the chain of custody for this item, the trial
court did not err in admitting it into evidence. See id. (citing Martinez, 186 S.W.3d
at 62).
5. SX 28 – Front porch lightbulb
Prigge testified that on January 3, 2020, he collected the front porch lightbulb
from the crime scene. He noted that he removed it from the socket, dusted the bulb
with fingerprint powder, and found a very good print on the bulb. He put the bulb
in a bag and sent the bag to the lab. This testimony establishes the beginning of the
chain of custody for this item.
Unerfusser testified that the lightbulb was delivered to the lab on January 17,
2020, and it returned from the lab on June 23, 2020. Wassung testified that while at
the lab, she analyzed the fingerprint on the lightbulb. Unerfusser testified that
because of COVID, the lab mailed the bulb back via FedEx, which he testified was
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an acceptable way of sending and receiving items of evidence to and from the lab.
This testimony establishes the end of the chain of custody for this item. Because we
have both the beginning and the end of the chain of custody for this item, the trial
court did not err in admitting it into evidence. See id. (citing Martinez, 186 S.W.3d
at 62).
6. SX 22 – Head hair of victim (collected 4/2/20)
Oliver testified that he collected the head-hair standard from the victim on
April 2, 2020. He testified that immediately upon obtaining the sample, he put it in
a white envelope, sealed it up, and then drove it immediately to the Denison Police
Department and placed it into their evidence locker. This testimony establishes the
beginning of the chain of custody for this item.
Unerfusser testified that after the hair sample was delivered to the evidence
locker, he took the hair personally to the lab that same day. McRoy testified that she
analyzed the head-hair standard from the victim while at the lab. She then forwarded
the samples to the DNA section of the lab.
Unerfusser testified that on July 28, 2021, he drove to the lab to retrieve the
sample. This testimony establishes the end of the chain of custody for this item.
Because we have both the beginning and the end of the chain of custody for this
item, the trial court did not err in admitting it into evidence. See id. (citing Martinez,
186 S.W.3d at 62).
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Because the trial court did not err by admitting the objected-to evidence
discussed above, appellant’s concern that only Holley’s uncertain identification
supported his conviction is unfounded.
IV. CONCLUSION
We affirm the trial court’s judgment.
/Maricela Breedlove/
MARICELA BREEDLOVE
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
211159F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ZACHARY DEAN JOLLIFF, On Appeal from the 59th Judicial
Appellant District Court, Grayson County,
Texas
No. 05-21-01159-CR V. Trial Court Cause No. 071936.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Breedlove. Chief Justice Burns and
Justice Smith participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered April 13, 2023
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