                           PD-0669-15
                                                                         June 2, 2015
                              No. ______________


              IN THE COURT OF CRIMINAL APPEALS
 ________________________________________________________
                            DAMIEN GUERRERO
                                          V.
                           THE STATE OF TEXAS
Appellant’s Petitionfor Discretionary Review of the Decision of the
 Second Court of Appeals in Cause No. 02-13-00611, Affirming the
    Judgment of the Trial Court in Cause Number 1263552D In
   Criminal District Court No. 4 of Tarrant County, Hon. Mike
                        Thomas, Presiding.
---------------------------------------------------------------------------------------
             APPELLANT’S PETITION FOR REVIEW
                                                     BARRY G. JOHNSON
                                                     State Bar. No. 10683000
                                                     2821 E. Lancaster
                                                     Ft. Worth, Texas 76103
                                                     Barrygj@aol.com
                                                     817-531-9665
                                                     817-534-9888 FAX
                                                     Attorney for Appellant




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      Now comes appellant, Damien Guerrero, and files this Petition for

Discretionary Review, and would show this Honorable court the following:

             STATEMENT CONCERNING ORAL ARGUMENT


      Appellant contends that oral argument would be helpful to the court in
unraveling the complex testimony and claimed gaps in the proof that appellant
claims are present.


             STATEMENT OF PROCEDURAL HISTORY


Date of the Court of Appeals decision: March 26, 2015.
Date of the Motion for Rehearing: April 10, 2015.
Date the ruling on the Motion for Rehearing disposed: April 30. 2015.


                         STATEMENT OF THE CASE
     Appellant was convicted of sexual assault of a child and indecency with a
child and was sentenced to seven years incarceration for each offense.


                         ISSUE PRESENTED
      Is DNA evidence offered to prove that penetration occurred legally

sufficient if neither the vaginal swab taken from the alleged victim nor the buccal

swab taken from the accused are specifically identified as having been tested and

compared ?


                                         2
       STATEMENT OF THE CLAIMED ERROR IN THE OPINION
      In its Opinion, on page 5, the court states the following:
      ―The forensic analyst said she recognized her initials on the buccal swabs

and the vaginal swabs. Those were identified as State’s Exhibits 24B and 24C.

The buccal swab was specifically identified as State’s Exhibit 24B. By the process

of elimination, the vaginal swabs were State’s Exhibit 24C.‖


                             THE CLAIMED ERROR

      The court of appeals erred in concluding that the evidence was legally

sufficient to support the jury’s verdict.


      Rachel Burch did not specifically identify Exhibit 24 C as the vaginal swab,

and therefore, the testimony of the alleged victim that vaginal penetration occurred

was not corroborated by physical evidence. In addition, Appellant would show

that the DNA analyst did not testify that the samples she testified to were Exhibits

27A and 27B, which were the known samples.


      It is important to carefully examine the words used in the testimony of DNA

analyst Rachel Burch concerning the Exhibits.

      The Master Exhibit Index, Reporter’s Record, Vol. 6, tells us that Exhibits

24 B and 24 C, are boxes. In other words the swabs themselves were not marked

as evidence, but the boxes that contained the exhibits were marked.



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      Exhibit 24, admitted for purposes of the record only, and not for use by the

jury, is described in the Master Exhibit List as ―sexual assault kit‖, appears to be a

sealed container in which Exhibit 24A through 24F were stored. RR. V. 3, p.3.




Ms. Burch testified that on March 28, 2012, she received an envelope from the Fort

Worth Police Department that was labeled with the complainant’s name. RR. V. 3,

p.121. She stated that within that envelope was a box, and that she was asked to

test the vaginal swabs and the buccal swabs of the complainant. RR, V.3, p.121.

Ms. Burch testimony concerning the identification of the Exhibits was as follows:

   Q. (by Ms. Simpson) I’m going to show you what’s been admitted as State’s
      24, for purposes of the record, and ask if you recognize anything on the
      outside of this packaging ?
   A. Yes, I do.
   Q. What do you recognize ?
   A. I recognize our lab number as well as my initials and date.
   Q. And then State’s 24A came from State’s 24, and there are five items here
      that have been admitted, 24B, C , D, E and F And ask if you recognize any
      of the handwriting on those exhibits?
   A. I recognize my initials and date as well as -–move the sticker—my initials
      and date on the buccal swabs for the reference as well as on the vaginal
      swabs.
   Q. And that would be State’s 24B and 24C?
   A. Correct.
   Q. But you do not have any handwriting on D, E, or F?
   A. Correct.
                                          4
   Q. Okay. So you –State’s 24 B is Complainant’s buccal swab?
   A. Correct.
   Q. And you were asked to look at vaginal swabs as well?
   A. Correct
   Q. State’s Exhibit 27 has two items inside, 27A and 27B. I’ll ask you if you
      recognize any of the handwriting on 27A, or 27B?
   A. I recognize initials and date on State’s 27A and 27B.
RR, V. 3. pp.121-123
   Q. And did you compare what was contained within the vaginal swab to the two
      buccal swabs that you had?
   A. Yes, I did.
RR, V. 3. pp.121-123.
      Maria Hinojosa testified that Exhibit 27A and 27B were swabs that were use

to collect buccal samples from appellant.

RR, V.3, p 80.

      Although it is not disputed that samples were obtained from appellant, it

should be noted that the Master Exhibit List refers to 27A and 27b as Envelopes.

RR, V.6. p.3. Ms. Hinojosa testified that sterilized Q-tips were used to collect

saliva samples from appellant, which were his b buccal samples. RR,V.3, p.77.

So, apparently, the envelopes marked as Exhibits 27A and 27B contained the Q-

tips which were used to collect the buccal samples.

      Ms. Burch testified that she recognized 27A and 27B, because of initials and

date, but does not state whose initials she recognized.

                                            5
      Significantly, Ms. Burch did not specifically testify that 27A and 27B, or the

contents contained therein, were the items that she tested for purpose of DNA

analysis.

      She did testify that a ―reference was obtained from Damien Guerrero‖ was

added to her table, or chart, for comparison purposes, RR, V.3, p.126) , but never

stated that the data was obtained as the result of testing Exhibit 27 or 27A.

      There is also some confusion as to the number of swabs that were obtained

from the complainant. There is no testimony as to how many buccal and vaginal

swabs were obtained from her. There was no testimony as to whether one swab

was equal to one Q-tip.

      Referring to the material tested that was obtained from the complainant, she

testified that ―we were asked to test the vaginal swabs‖ (plural) ―and also the

buccal swabs‖ (plural).

RR, V.3, p. 121, Line 9.
      Later on that page she used the singular and stated that for ―that submission

of evidence I was looking at a buccal swab from ―the complainant‖.

      Ms. Burch was asked the following:
   ―Q.      When you looked at the contents of the vaginal swab and compared it
            with the buccal swab of Damien Guerrero, did you make any
            conclusions?
    A.      Yes, I did.‖ RR, V.3, p.125-125.



                                          6
      She testified that her conclusion was that Damien Guerrero cannot be

excluded as the contributor of the sperm fraction. RR, V.3, p.128.

      The above summary and quotation from the testimony lead to two

conclusions. There was no direct evidence that Exhibit 26C contained the vaginal

swab of the complainant and there was no testimony that Exhibits 27A and 27B,

known to be buccal swabs of appellant, were the swabs tested and compared to the

vaginal swab of the complainant.

      When the sufficiency of the evidence is challenged, an appellate court must

view all evidence in the light most favorable to the verdict to determine if the jury

was rationally justified in finding guilt beyond a reasonable doubt.

Brooks v. State , 323 S.W.3d 893(Tex. Crim. App. 2010). The court must ensure

that the evidence presented actually supports a conclusion that the defendant

committed the crime. Williams v. State, 235 S.W.3d 742, 750. (Tex. Crim. App.

2007).

      In this petition we have attempted to demonstrate the problems with the

DNA evidence in the trial. In its opinion, the court conceded that it took the

process of elimination to connect up the vaginal swab to Exhibit 24C.

      With respect to the appellant’s DNA, to determine that the analyst’s

conclusion that there was a match requires the court to fill in the blanks with




                                          7
testimony that was not presented to conclude that she did test 27A and 27B,

because she did not testify to it.

      In the State’s closing argument, the importance of the DNA evidence was

emphasized by the prosecutor’s statement that first, appellant ―left his sperm inside

of her sexual organ.‖ Then, the prosecutor said that there ―are 5.7 quintillion

reasons to find this man guilty‖, quoting the statistic testified to by the DNA

analyst as to the likelihood of appellant being the person whose DNA was found.



                          CONCLUSION AND PRAYER
      Because the gap in the state’s proof is so wide and so significant, appellant

prays that this Petition for Review be granted, and upon hearing, that this court

reverse and render judgment of acquittal on all charges, or in the alternative , to

remand this matter for a new trial on all charges, or, in the alternative, to render a

judgment of acquittal as to the offense of aggravated sexual assault of a child, and

to remand the case for a new trial on the charge of Indecency with a Child, or for a

new punishment hearing on the offense of Indecency with a Child..


                                              Respectfully submitted,
                                              /s/ Barry G. Johnson
                                              Barry G. Johnson
                                              SB#10683000
                                              2821 E. Lancaster


                                          8
                                            Fort Worth, Texas 76103
                                            barrygj@aol.com
                                            817-531-9665
                                            fax 817-534-9888
                                            Attorney for Appellant

                         CERTIFICATE OF SERVICE
I hereby certify that I have served a copy of the foregoing document upon Sharen
Wilson, Attorney for Appellee, by email, on this the 1st day of June 2015.


                                            /s/ Barry G. Johnson
                                            Barry G. Johnson




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