             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00439-CR
          No. 02-18-00440-CR
     ___________________________

  JUAN MANUEL HERRERA, Appellant

                     V.

         THE STATE OF TEXAS


  On Appeal from the 371st District Court
           Tarrant County, Texas
   Trial Court Nos. 1510492D, 1559977R


Before Sudderth, C.J.; Bassel and Womack, JJ.
 Memorandum Opinion by Justice Womack
                           MEMORANDUM OPINION

                                  I. INTRODUCTION

      Appellant Juan Manuel Herrera appeals from his convictions for the

continuous sexual abuse of Julia, a child younger than fourteen, and for the sexual

assault of Megan, a child younger than seventeen.1         See Tex. Penal Code Ann.

§§ 21.02(b), 22.011(a)(2), (c). He argues in three appellate issues that the trial court

abused its discretion by admitting a DNA summary report, which identified him as

the biological father of Megan’s child, because it was inadmissible hearsay, was

irrelevant, and denied him the right to confront the analyst who performed the DNA

test. We conclude that Herrera failed to preserve any of his arguments for our review.

Accordingly, we affirm the trial court’s judgments.2

                                  II. BACKGROUND

      Herrera does not challenge the sufficiency of the evidence to convict him of

either offense. It is enough to say that Herrera repeatedly sexually abused and




      1
       We use aliases to refer to these minors. See Tex. R. App. P. 9.8 cmt., 9.10; Tex.
App. (Fort Worth) Loc. R. 7.
      2
       Because the report was introduced as part of the State’s sexual-assault case and
not the State’s continuous-sexual-abuse case, it appears Herrera raises no challenge to
his conviction for continuous sexual abuse. Because his notice of appeal challenged
both convictions, we affirm the continuous-sexual-abuse conviction even though it is
not specifically challenged in Herrera’s appellate brief. See Ingram v. State, 503 S.W.3d
745, 747 (Tex. App.—Fort Worth 2016, pet. ref’d).


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assaulted Megan and Julia, who were his live-in girlfriend’s daughters.         Megan

eventually gave birth to Herrera’s child.

      During the ensuing police investigation, a detective obtained DNA samples

from Megan, the baby, and Herrera. At trial, the State proffered a “supplemental data

table,” prepared by forensic analyst Rachel Burch. Burch explained how DNA data is

extracted from obtained samples and how she then can compare the DNA profiles

based on the extracted data:

      So what we’ll do is we will take . . . typically . . . a swab that somebody
      takes from the inside of a person’s cheek. We’ll take a cutting from that
      swab. We’ll do something called an extraction. So what that’s doing is
      it’s opening up the cells that were on that swab and releasing the DNA.
      Then we do something called a quantification step, so it lets us know
      how much DNA we got from the extraction. Then we do an
      amplification step, which is that PCR step [i.e., polymerase chain
      reaction], which is going to make copies of the DNA in the areas that
      we’re interested in. And then we load those copies onto an instrument
      that allows us to visualize what that DNA profile is.

Someone else at Burch’s lab performed “the extraction, the quantification, the

amplification, and the loading it on the instrument.” Burch then took the “data”

extracted by the instrument “to see if somebody could be the biological father of the

child” and created the table to explain the DNA data compiled from the prior steps.3


      3
       The State asserts in its brief that the table contains “the computer-generated
DNA profiles” of Herrera, Megan, and the baby. This statement is not incorrect but
needs refining. Burch created the table based on the computer-generated DNA data.
The table is not the report generated by the instrument that compiled the DNA
“numbers” from the samples. The table was a summary of those numbers based on
Burch’s analysis.


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In other words, she took the data obtained after the extraction, quantification,

amplification, and instrumentation steps; analyzed it; and created the table. Herrera

objected to the admission of the table because it was “[h]earsay.” The trial court

overruled Herrera’s objection and admitted the table. Herrera did not request a

running objection.

      Burch then referred to her table and testified that based on her comparisons of

the DNA data, Herrera could not be excluded as being the baby’s biological father

and that 99.999999997% of the male population could be excluded. Herrera did not

object to Burch’s testimony about the table or to her analysis of the probabilities that

Herrera was the baby’s father. The jury found Herrera guilty of both offenses and

assessed his punishments at life confinement.

                                  III. DISCUSSION

      In his first issue, Herrera argues that the trial court’s admission of Burch’s

summary data table was an abuse of discretion because it was “testimony against

[him]” and, thus, was inadmissible hearsay. At trial, Herrera objected to the admission

of Burch’s table but did not object to Burch’s subsequent testimony explaining the

table and its connection to her paternity conclusions. By failing to object each time

the objectionable evidence was offered or to request a running objection, Herrera

forfeited any error arising from the admission of the table.4 See Lumsden v. State,


      Although the State does not raise preservation regarding Herrera’s hearsay
      4

argument, we have an independent duty to ensure we review only claims that have

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564 S.W.3d 858, 888 (Tex. App.—Fort Worth 2018, pet. ref’d), cert. denied, 139 S. Ct.

2018 (2019); see also Thomas v. State, No. 05-16-01103-CR, 2018 WL 3654908, at *6

(Tex. App.—Dallas Aug. 2, 2018, pet. ref’d) (mem. op., not designated for

publication); Turner v. State, 642 S.W.2d 216, 217 (Tex. App.—Houston [14th Dist.]

1982, no pet.). We overrule issue one.

         In his remaining two issues, Herrera again challenges the trial court’s admission

of Burch’s table but asserts that the admission was an abuse of discretion because the

table was irrelevant and because he was not allowed to confront the person who

performed the extraction, quantification, amplification, and instrumentation steps,

violating the Confrontation Clause. At trial, Herrera’s sole objection to the admission

of the table was “[h]earsay.” Because Herrera’s relevance and Confrontation Clause

appellate arguments do not comport with his hearsay trial objection, he has failed to

preserve these issues for our review. See Tex. R. App. P. 33.1(a)(1)(A); Tex. R. Evid.

103(a)(1)(B); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); McMath v.

State, No. 05-17-00793-CR, 2018 WL 3491046, at *4 (Tex. App.—Dallas July 20,

2018, pet. ref’d) (mem. op., not designated for publication); Smith v. State, 494 S.W.3d

243, 254–55 (Tex. App.—Texarkana 2015, no pet.). We overrule issues two and

three.



been properly preserved in the trial court. See Darcy v. State, 488 S.W.3d 325, 327–28
(Tex. Crim. App. 2016).


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                                   IV. CONCLUSION

      Herrera did not preserve his appellate issues for our review. Accordingly, we

overrule his issues and affirm the trial court’s judgments. See Tex. R. App. P. 43.2(a).


                                                       /s/ Dana Womack

                                                       Dana Womack
                                                       Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 26, 2019




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