                                 NO. 12-15-00078-CR

                         IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

BRANDON PAUL COUCH,                            §      APPEAL FROM THE 354TH
APPELLANT

V.                                             §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                       §      RAINS COUNTY, TEXAS

                                 MEMORANDUM OPINION
       A jury found Appellant, Brandon Paul Couch, guilty of murder, and the trial court
assessed his punishment at imprisonment for forty years. In one issue, Appellant contends the
trial court erred in admitting a firearm and toolmark analysis report prepared by James Jeffress
and the accompanying testimony of Kevin Callahan through whom the State offered the report.
We affirm.


                                        BACKGROUND
       On November 14, 2012, Gary Couch found his mother, Mattie Couch, dead in her home
from one or more shotgun wounds. There were no signs of a struggle or forced entry into the
home. The victim apparently was holding a pizza and a drink when she was killed. An x-ray
showed a mass of bird shot pellets all over the left side of Mattie’s chest. Part of the wadding
from a shotgun shell was found inside her chest cavity. The wadding in her chest cavity and the
absence of soot or stippling on the wounds indicated the murder weapon was fired three to five
feet from the victim.
       Appellant is Mattie Couch’s grandson. He lived in a van behind her house. Appellant
seldom held a job and usually got money from his grandmother, who felt she had to take him in
because he had nowhere else to go. Their relationship was known to be strained.



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       Rains County chief deputy sheriff, Kurt Fisher, remained at the crime scene with the
justice of the peace while the sheriff and other officers searched for Appellant. As he stood
watch outside the house, Fisher saw Appellant walk out of the woods toward the house carrying
a long gun. When Fisher yelled to him to drop the gun, Appellant turned and ran.     A protracted
search for Appellant ensued.
       Using an infrared sensor, a Texas Department of Public Safety (DPS) helicopter located
Appellant’s hiding place. Appellant was arrested and took the officers to a nearby creek where
they recovered the twenty gauge shotgun he had been carrying. Appellant also had two twenty
gauge shotgun shells (numbers 7½ and 8) when arrested.
       During the time Appellant evaded arrest, he encountered Deborah Simmons, a friend’s
mother, on a neighbor’s porch.      Simmons had noticed the helicopter activity.      She asked
Appellant if he had killed his grandmother.         Appellant answered “no,” but he refused to
relinquish the gun he was carrying. Appellant also called on a school friend, Christopher Siscoe,
who encouraged Appellant “to turn himself in.” Siscoe testified that Appellant told him that he
had used P2P, a methamphetamine, that night. Appellant also told Siscoe that “he felt like his
grandmother was sorry before he pulled the trigger.” By this, Appellant apparently meant that he
thought his grandmother felt remorse for being “rough on him” over the years.
       Over Appellant’s objections, the trial court admitted a “Firearms/Toolmarks Laboratory
Report” prepared by James Jeffress, a DPS forensic scientist. The report sets out Jeffress’s
opinions from his analysis of the shotgun, shot pellets, shotgun shells, shotgun wadding, and
clothing submitted for testing. Jeffress found that the shot pellets from the victim’s wound were
of the same type as the number 7½ lead shot in the unfired shell found with Appellant at his
arrest. He found that the wadding taken from the victim’s chest cavity was consistent with the
wadding used in the manufacture of Winchester twenty gauge shotgun shells, the brand and
gauge of the shells found on Appellant.      Jeffress reported that the submitted shotgun was
operational, although “malfunctions were detected during testing.”
       The State introduced the “Firearms/Toolmarks Laboratory Report” as a business record
through the testimony of Keven Callahan, a firearms examiner with the DPS crime laboratory.
Appellant objected to the report’s admission contending that its admission through Callahan,
rather than through the analyst who actually did the testing, violated his right to confront the
witnesses against him. The trial court overruled Appellant’s objections and admitted the report.



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          Appellant called no witnesses and presented no other evidence.


                                    RIGHT OF CONFRONTATION
          In his sole issue, Appellant contends the trial court reversibly erred in admitting the
firearms and toolmark report prepared by James Jeffress but offered through the testimony of
Kevin Callahan, the custodian of the records, and in allowing Kevin Callahan to read from the
report.    Appellant maintains that the report contained inadmissible hearsay, and that the
admission of the report prevented him from cross examining James Jeffress, who did the testing
and prepared the report. Therefore, Appellant maintains that he was denied his constitutional
right of confrontation. The State contends that Callahan’s predicate testimony established that he
performed a second round of testing on the wadding and pellets removed from Mattie Couch’s
body, and therefore he was not a mere surrogate for Jeffress as contended by Appellant. The
State argues that the conclusions stated in the report regarding the wadding and pellets were
limited to Callahan’s own conclusions.        Callahan and his notes were available for cross
examination.      Therefore, the State insists, there was no denial of Appellant’s right of
confrontation.
Standard of Review
          The Confrontation Clause forbids the admission of testimonial hearsay unless the
declarant is unavailable to testify and the defendant had a prior opportunity to cross examine the
declarant. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177
(2004).     Although evidentiary rulings are usually reviewed for an abuse of discretion, the
question of a statement’s testimonial nature is one of law that is reviewed de novo. Wall v.
State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).
Applicable Law
          The Confrontation Clause of the Sixth Amendment guarantees the accused the right to
confront the witnesses against him. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 1068,
13 L. Ed. 2d 923 (1965). “Testimonial” statements are inadmissible at trial unless the witness
who made them either takes the stand to be cross examined or is unavailable and the defendant
has had a prior opportunity to cross examine the witness. Crawford, 541 U.S. at 54, 124 S. Ct. at
1366. “Testimonial” statements include those “that were made under circumstances which
would lead an objective witness reasonably to believe that the statement would be available for



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use at a later trial.” Id. at 52, 124 S. Ct. 1364. Forensic reports prepared in connection with a
criminal investigation or prosecution are testimonial and cannot be admitted without satisfying
the requirements of the Confrontation Clause. Burch v. State, 401 S.W.3d 634, 636-37 (Tex.
Crim. App. 2013).
       In Burch, the State offered into evidence a one page laboratory report certifying the
substance tested was cocaine and weighed 2.2 grams, including adulterants or dilutants. Both the
testing analyst, Pinckard, and the reviewing analyst, Lopez, signed the report. Id. at 635.
Pinckard no longer worked for the testing company. The State called Lopez who explained that
Pinckard had performed all the tests. However, Lopez had double checked everything to insure
that the laboratory procedures were followed, although she did not participate in the tests or see
them performed. Id. at 635-36. In holding the report’s admission violated the Confrontation
Clause, the court stated, “Without having the testimony of the analyst who actually performed
the tests, or at least one who observed their execution, the defendant has no way to explore the
types of corruption and missteps the Confrontation Clause was designed to protect against.” Id.
at 637-38.
       The analyst who tested the defendant’s blood was on unpaid leave in Bullcoming v. New-
Mexico so the State called another analyst familiar with the laboratory testing procedures. 564
U.S. 647, 651, 131 S. Ct. 2705, 2709, 180 L. Ed. 2d 610 (2011). The Supreme Court held that
the report was the testimonial statement of the analyst who actually performed the tests; it could
not be received in evidence through the testimony of a “surrogate” witness. Id., 564 U.S. at 652,
131 S. Ct. at 2710.
       In Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App. 2015), the court of criminal
appeals considered a Confrontation Clause challenge to the admission of DNA analysis of
bloodstains on the defendant’s shirt. The State called the forensic laboratory director to testify
about the DNA analysis in the defendant’s case. The raw data the director relied upon in
reaching her conclusion was generated by three other analysts who were not called. However,
the director supervised the proceedings and conducted the final analysis comparing the produced
DNA profiles to the evidence and performed the crucial analysis determining the DNA match.
Id. at 511-12. Therefore, the conclusion she testified to at trial was her own. Id. at 515. The raw
DNA data merely provided the basis for the opinion she had developed. Id. at 514. Her
testimony was not used as a substitute for out-of-court testimony. See id. “Without [the



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director’s] independent analysis, the DNA profiles – the raw, computer-generated data . . . stand
for nothing . . . .” Id. at 519.
        “For an expert’s testimony based upon forensic analysis performed solely by a
nontestifying expert to be admissible, the testifying expert must testify about his or her own
opinions and conclusions.” Id. at 517. The testifying expert can rely upon information from a
nontestifying analyst, but the testifying expert cannot act as a surrogate to introduce that
information. Id. at 518.
Discussion
        The firearm, shot pellets, shotshells, and shot wad seized as evidence were sent to the
DPS crime lab for forensic testing. The report (State’s Exhibit 34) sets out the results of the
testing conducted by James Jeffress as well as his conclusions based on the test results. Jeffress
concluded that (1) the shotgun was operational but subject to malfunction; (2) the pellets and the
wadding recovered from the body were consistent with number 7½ lead shot and with a
Winchester manufactured wad; (3) and the muzzle to garment distance (relating to Appellant’s
clothing) could not be determined.
        Jeffress did not testify at the trial or at any other proceeding in the case. Instead, the State
introduced the firearms and toolmark report as a business record through the testimony of Kevin
Callahan, a firearms examiner and records custodian with the same laboratory.
        Callahan identified himself, not as one who observed or conducted the testing, but as a
“verifier” of the results. When asked to explain his role as verifier and the verification process,
Callahan testified as follows:


        So the original analyst does all the documentation. Does the report writing. At that point they
        remain the custodian of the evidence. I review the documentation and then they bring me the
        evidence and I will review the actual conclusions . . . . We have several conclusions that are
        required to be verified. We can also do verifications based off of the parameters of the case. So in
        this instance[,] what was verified was that the size of the shots is consistent with seven and a half
        shot and that’s based on the weight of the pellets and their diameter.


        Callahan testified outside the presence of the jury that the shotgun pellets retrieved from
Mattie Couch’s body were consistent with number 7½ shot based on the weight and size of the
shot determined by Jeffress’s tests. Callahan gave no basis for his verification of Jeffress’s
conclusions regarding the other items submitted for testing. He made no conclusions but simply
read those contained in Jeffress’s report. It appears that the verifier’s function was to review the


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recorded results of the tests in order to confirm that the analyst’s conclusions conform to the test
results. It was not the verifier’s function to make independent conclusions. The trial court
admitted the report into evidence. After the report’s admission, the State had Callahan read
Jeffress’s report without further explanation.
       It is undisputed that the content of Jeffress’s report is testimonial. And Callahan testified
that he neither helped conduct nor observed the tests performed by Jeffress. Therefore, we
conclude that Callahan was simply a surrogate for Jeffress. The admission of the firearms and
toolmark report through Callahan violated Appellant’s right of confrontation.
Harm – Applicable Law
       Error in admitting evidence in violation of a defendant’s right to confront the witnesses
against him is constitutional error, which requires reversal unless the reviewing court determines
beyond a reasonable doubt that the error did not contribute to the conviction or punishment.
TEX. R. APP. P. 44.2(a); Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010). “The
question is not whether the verdict is supported by the evidence.” Scott v. State, 227 S.W.3d
670, 690 (Tex. Crim. App. 2007). Rather, the question is the likelihood that the constitutional
error was actually a contributing factor in the jury’s deliberations in arriving at their decision.
Id.
       In determining whether constitutional error under Crawford may be declared harmless
beyond a reasonable doubt, the following factors are relevant: (1) how important the out of court
statement was to the State’s case; (2) whether the out of court statement was cumulative of other
evidence; (3) the presence or absence of evidence corroborating or contradicting the out of court
statement on material points; and (4) the overall strength of the prosecution’s case. Scott, 227
S.W.3d at 690 (quoted in Langham, 305 S.W.3d at 582).
Harm–Discussion
       Appellant argues that the prosecutor obviously believed the report was important in the
proof of the State’s case, because he emphasized its role in both his opening statement and final
argument. In his opening statement, the prosecutor told the jury that


       [s]he was shot with a 20 gauge shotgun . . . . I believe the evidence will show that there were
       pellets and wadding removed from her body. And the pellets and wadding are consistent with
       those from a 20 gauge Winchester shell . . . . The evidence will show the defendant gets caught
       with a 20 gauge shotgun. In the chamber of the 20 gauge shotgun is a Winchester 20 gauge,
       unspent shell. The pellets and wadding in the Winchester unspent shell or that shell itself are




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       consistent with those that were found in Mattie Couch. Winchester 20 gauge, seven and a half
       shot.


In his final argument, the prosecutor made the following argument:


       It’s easy. He’s caught with a .20 gauge shotgun, with a .20 gauge shell in it. He’s got .20 gauge
       shells on him. She’s shot, not with a slug or something . . . . That’s the gun he was caught with.
       That’s the gun that killed her . . . . He’s caught and yes, there’s a million, billion, how many ever
       shells a Winchester – but isn’t it awful coincidental, it’s more than a coincidence, she’s shot and
       you do have the lab report here which ties it all together. She’s shot seven and half shot pellets
       that come out of her. Seven and a half shot pellets in a gun. It’s a Winchester brand wadding.
       Winchester shell in the gun . . . . Take the lab reports back there that shows it’s the same type of
       gun.


       Tests of Appellant’s clothing and weapon failed to disclose the presence of blood.
Appellant argues that the case against him is entirely circumstantial. In the absence of physical
evidence connecting him to the crime, Appellant contends that it is unreasonable to believe the
report was not “a contributing factor in the jury’s deliberations in arriving at their decision.”
       The challenged firearms and toolmark report contained three conclusions:                                (1) the
shotgun was operational but malfunctioning; (2) the pellets and wadding recovered from the
body were consistent with number 7½ shot and with a Winchester manufactured wad; and (3) the
muzzle to garment distance could not be determined.
       The conclusions regarding the shotgun (conclusion 1) and muzzle to garment distance
(conclusion 3) contributed nothing to the proof of Appellant’s guilt. The second conclusion
contributes an added degree of scientific certainty to the connection between the pellets and the
wadding found in the victim’s chest cavity and the shells in Appellant’s shotgun and in his
pocket when he was captured.
       Mattie Couch’s killer murdered her with a shotgun loaded with birdshot. Appellant was
located after an extensive search. When captured, he had a shotgun loaded with birdshot and two
similar shells in his pocket. The jury did not need forensic affirmation that the pellets and
wadding were “consistent with” the ammunition possessed by Appellant in order to make the
connection.
       The State’s case against Appellant was strong. Appellant lived on the premises with his
grandmother and had access to her residence. He fled from police and he was apprehended only
after an extended search using dogs, helicopters, and a SWAT team. During his flight, he told



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his friend that “he believed she was sorry before he pulled the trigger.” She had taken him in,
“because nobody would.” But he used drugs and seldom worked. He depended on her for more
than a place to stay. A discordant relationship resulted. Appellant had been charged with a prior
assault on his grandmother. Even unaided by the challenged report, it would have been difficult
for the jury to ignore that Appellant, when captured, had the type of weapon and ammunition
used to kill his grandmother.
         We conclude that beyond a reasonable doubt, the error in admitting the firearms and
toolmark report did not contribute to Appellant’s conviction or punishment. Appellant’s sole
issue is overruled.


                                                   DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.



                                                                                  BILL BASS
                                                                                     Justice


Opinion delivered July 29, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of appeals, sitting by assignment.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JULY 29, 2016


                                          NO. 12-15-00078-CR


                                    BRANDON PAUL COUCH,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                Appeal from the 354th District Court
                              of Rains County, Texas (Tr.Ct.No. 5354)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Bill Bass, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J. and Bass, Retired J., Twelfth Court of Appeals,
                    sitting by assignment.




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