                                  PD-0669-15

                              No. ______________



                     IN THE COURT OF CRIMINAL APPEALS

        ________________________________________________________

                                  DAMIEN GUERRERO

                                                V.

                                 THE STATE OF TEXAS

Appellant’s Petition for 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.co,
                                                      817-531-9665
                                                      817-534-9888 FAX
                                                      Attorney for Appellant


                July 1, 2015
      Now comes appellant, Damien Guerrero, and files this Petition for

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


             IDENTITY OF JUDGE,PARTIES, AND COUNSEL

Trial Judge: Honorable Mike Thomas.

Appellant is Damien Guerrero.

The State of Texas prosecuted the case.

Trial Counsel for the state: Paige Simpson and Mark Thielman,
       Assistant District Attorneys of Tarrant County, 401 W. Belknap, Fort
       Worth, Texas 76196.

Trial Counsel for the defense: Terry Barlow, 1100 E. Weatherford, Fort Worth,
       Texas 76101, and Dominic Bauman, 6207 Airport, Freeway, Ft worth, Texas
       76117.

Appellate Counsel for the state: Charles Mallin, Assistant District, Attorney of
     Tarrant County, 401 W. Belknap, Fort Worth, Texas 76196.

Appellate Counsel for the defendant: Barry G. Johnson, 2821 E. Lancaster, Fort
     Worth, Texas 76103.




APPELLANT’S PETITION FOR REVIEW – Page 2
                             TABLE OF CONTENTS

                                                 Page

Identity of judge, parties and counsel           2

Table of Contents                                3

Index of Authorities                             4

Statement Concerning Oral Argument               5

Statement of the Case                            5

Statement of Procedural History                  5

Questions Presented                              5

Argument                                         6

Prayer for Relief                                11

Appendix (attached as pdf)




APPELLANT’S PETITION FOR REVIEW – Page 3
                       TABLE OF AUTHORITIES



                                                        Page
Brooks v. State
     323 S.W.3d 893(Tex. Crim. App. 2010). ……………..      10

Williams v. State
      235 S.W.3d 742, 750. Tex. Crim. App. 2007)………..   10




APPELLANT’S PETITION FOR REVIEW – Page 4
             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 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.


                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.

Date Petition for Discretionary review submitted: June 1, 2015.

Date that the Petition was returned unfiled: June 2, 2015.

Date given by the court to file corrected Petition: June 12, 2012 (ten days from
June 2, 2012).

Date Motion for extension to file Petition for discretionary Review Filed: June 26,
2015.

                  QUESTIONS PRESENTED FOR REVIEW

      Is DNA evidence offered to prove that penetration occurred legally

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




APPELLANT’S PETITION FOR REVIEW – Page 5
swab taken from the accused are specifically identified as having been tested and

compared?

      Was the evidence was legally sufficient to support the jury’s verdict.

       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.‖


                      ARGUMENT AND AUTHORITIES

      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.



APPELLANT’S PETITION FOR REVIEW – Page 6
      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.

      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?




APPELLANT’S PETITION FOR REVIEW – Page 7
      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.

      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.


APPELLANT’S PETITION FOR REVIEW – Page 8
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.

      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.



APPELLANT’S PETITION FOR REVIEW – Page 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.

      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).



APPELLANT’S PETITION FOR REVIEW – Page 10
      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

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




APPELLANT’S PETITION FOR REVIEW – Page 11
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..


                                             /s/ Barry G. Johnson
                                             Barry G. Johnson

                                             BARRY G. JOHNSON
                                             State Bar. No. 10683000
                                             2821 E. Lancaster
                                             Ft. Worth, Texas 76103
                                             Barrygj@aol.co,
                                             817-531-9665
                                             817-534-9888 FAX
                                             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 26th day of June 2015.



                                             /s/ Barry G. Johnson
                                             Barry G. Johnson




                      CERTIFICATE OF COMPLIANCE

     I hereby certify that the foregoing document complies with the requirement
oF T.R.A.P. 9.4(i)(3) and the word count is 1,906 as computed by the program in
which this document was prepared.

                                             /s/ Barry G. Johnson
                                             Barry G. Johnson



APPELLANT’S PETITION FOR REVIEW – Page 12
