JANUARY 20, 2015




                         NO. PD-1644-14
               IN THE
 COURT OF CRIMINAL APPEALS OF TEXAS

    DAYMOND LAMONT STEWART
                                            Appellant
                                                v.

                    STATE OF TEXAS
                                            Appellee



      APPELLANT’S PETITION
    FOR DISCRETIONARY REVIEW
                       Appeal from the 82nd Judicial District Court of Falls 9226
               and Cause Number 10-13-00414-CR in the Tenth Court of Appeals of Texas


                          LAW OFFICE OF STAN SCHWIEGER
                            600 Austin Avenue, Suite 12
                                    P.O. Box 975
                              Waco, Texas 76703-0975
                                   (254) 752-5678
                             (254) 752-7792—Facsimile
                          E-mail: wacocrimatty@yahoo.com
                               State Bar No. 17880500

                     ORAL ARGUMENT NOT REQUESTED



 January 20, 2015
                    NAMES OF THE PARTIES TO THE FINAL JUDGMENT

                                                             STATE OF TEXAS:

                                                         Ms. Kathryn J. Gilliam
                                                     Falls County District Attorney
                                                      125 Bridge Street, Suite 309
                                                         Marlin, Texas 76661

                                             APPELLANT’S TRIAL COUNSEL

                                                              Mr. Hoagie Karels
                                                             129 Post Office Street
                                                               Marlin, TX 76661

                                                                  TRIAL JUDGE

                                                       The Honorable Robert Stem
                                                           82nd District Court
                                                        Falls County Courthouse
                                                          Marlin, Texas 76691




Daymond Lamont Stewart v. State–Appellant’s Petition for Discretionary Review         Page i
                                                         TABLE OF CONTENTS

NAMES OF ALL PARTIES TO THE FINAL JUDGMENT.. . . . . . . . . . . . . . . . . i

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE/STATEMENT OF PROCEDURAL HISTORY. . v

GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    The Waco court of appeals failed to fully comply with the rules
    concerning memorandum opinions by failing to the “basic reasons”
    concerning Appellant’s claim.

            A.           Reason for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

            B.           What’d I Say?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

            C.           Remand is necessary to allow the Waco court to answer Appellant’s
                         claim.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

            D.           Review is necessary.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4

APPENDIX:                             Stewart v. State, Nos. 10-13-00414-CR, 10-13-00415-CR, 2014
                                      WL 6091954 (Tex. App.—Waco Nov. 13, 2014, no pet. h.)
                                      (mem. op., not designated for publication).




Daymond Lamont Stewart v. State–Appellant’s Petition for Discretionary Review                                                    Page ii
                                                     INDEX OF AUTHORITIES

                                                               FEDERAL CASES

Wei Guang Wang v. BIA,
     437 F.3d 270 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Valle,
      527 F. App’x 158 (3d Cir. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

                                                                   STATE CASES

Arcila v. State,
      834 S.W.2d 357 (Tex. Crim. App. 1992), overruled on other grounds by
      Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . 6

Gonzalez v. McAllen Med. Ctr., Inc.,
     195 S.W.3d 680 (Tex. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Hammer v. State,
    296 S.W.3d 555 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Farrell v. State,
      864 S.W.2d 501 (Tex. Crim. App. 1993) (en banc). . . . . . . . . . . . . . . . . . . . 6

Sims v. State,
      99 S.W.3d 600 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Stewart v. State,
      Nos. 10-13-00414-CR, 10-13-00415-CR, 2014 WL 6091954 (Tex.
      App.—Waco Nov. 13, 2014, no pet. h.). . . . . . . . . . . . . . . . . . . . . . . . . v, 1, 4

Thompson v. State,
     987 S.W.2d 64 (Tex. Crim. App. 1999) (en banc). . . . . . . . . . . . . . . . . . . . . 5

                                                              STATE STATUTES

Tex. Penal Code Ann. § 22.021 (West 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Daymond Lamont Stewart v. State–Appellant’s Petition for Discretionary Review                          Page iii
                                                                  STATE RULES

Tex. R. Evid. 101(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Tex. R. App. P. 47.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tex. R. App. P. 47.4.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Tex. R. App. P. 66(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

                                                              MISCELLANEOUS

Chad M. Oldfather,
     Remedying Judicial Inactivism: Opinions As Informational Regulation, 58 Fla.
     L. Rev. 743. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3




Daymond Lamont Stewart v. State–Appellant’s Petition for Discretionary Review                                      Page iv
                            STATEMENT REGARDING ORAL ARGUMENT

            Appellant Daymond Lamont Stewart respectfully requests that this appeal not

be presented on oral argument. The issues can be addressed by briefs adequately

because the error committed is open and obvious.

                                      STATEMENT OF THE CASE
                                 STATEMENT OF PROCEDURAL HISTORY

            Mr. Stewart was indicted for the offense of Burglary of a Habitation.1 Trial

began on November 5, 2013 in the 82nd Judicial District Court of Falls County,

Texas. The Honorable Judge Robert Stem presided over the trial. Appellant was

found guilty of that offense on November 12, 2013.2 The jury assessed punishment,

finding the enhancement allegation true. Sentence was assessed at 60 years in the

Texas Department of Criminal Justice, Institutional Division and fine of $2, 500.00.3

The sentence was pronounced in open court on November 12, 2013.4 Certification of

defendant’s right of appeal was filed on that same date, showing that Appellant had




            1
                         TEX. PENAL CODE ANN. § 22.021 (West 2012); (I C.R. at 3).
            2
                         (II C.R. at 103).
            3
                         (II C.R. at 104).
            4
                         (6 R.R. at 75).

Daymond Lamont Stewart v. State–Appellant’s Petition for Discretionary Review        Page v
“the right to appeal.”5 Notice of appeal was filed November 15, 2013.6             In a

memorandum opinion, Appellant’s issues were overruled by the Waco Court of

Appeals, affirming the judgment.7 This Court approved an extension to file the

application for Petition for Discretionary Review on December 17, 2014.




            5
                         (II C.R. at 102).
            6
                         (II C.R. at 106).
            7
           Stewart v. State, Nos. 10-13-00414-CR, 10-13-00415-CR, 2014 WL 6091954, at *3
(Tex. App.—Waco Nov. 13, 2014, no pet. h.) (mem. op., not designated for publication).

Daymond Lamont Stewart v. State–Appellant’s Petition for Discretionary Review       Page vi
GROUND FOR REVIEW:
   The Waco court of appeals failed to fully comply with the rules
   concerning memorandum opinions by failing to the “basic reasons”
   concerning Appellant’s claim.

            Texas courts have held that “the State is not required to present an expert
            on probability and statistics in order to show that DNA testing is reliable.
            Neither Kelly nor Rule 702 requires such a showing as a prerequisite to
            admission.” Accordingly, we cannot conclude that Stewart’s
            constitutional rights were violated. We overrule Stewart’s sole issue in
            both appellate cause numbers.8

Mr. Stewart’s claims below dealt with confrontation – not a violation of the Rules of

Evidence. As such, this matter should be remanded to the Court of Appeals, as their

opinion clearly is violation of the Rules of Appellate Procedure.9

            A.           Reason for review.

            The Court of Appeals opinion appears to have so far departed from the accepted

and usual course of judicial proceedings as to call for an exercise of this Court’s

supervision.10 Specifically, that court failed to issue a memorandum opinion within

the confines of the Rules of Appellate Procedure.




            8
                         Stewart, 2014 WL 6091954, at *3 (internal citations omitted).
            9
                See TEX. R. APP. P. 47.1. (stating that “[t]he court of appeals must hand down a
written opinion that is as brief as practicable but that addresses every issue raised and necessary to
final disposition of the appeal.”).
            10
                         TEX. R. APP. P. 66(f).

Daymond Lamont Stewart v. State–Appellant’s Petition for Discretionary Review                    Page 1
            B.           What’d I Say?11

            Mr. Stewart requests review of this Court for an order remanding this matter to

the Court of Appeals. The remand should order the Waco court of appeals to answer

the question posed in his brief before the Tenth Court of Appeals: did the trial court

deny Mr. Stewart’s “constitutional right of confrontation by allowing evidence of a

statistical ‘match’ concerning DNA evidence[?]”12

            A memorandum opinion is intended to be brief in scope and “no longer than

necessary to advise the parties of the court’s decision and the basic reasons for it.”13

 A memorandum opinion generally should focus on the basic reasons why the law

applied to the facts leads to the court’s decision.14 Persons affected by the decision

are entitled to a written opinion stating why the jury’s verdict can or cannot be set

aside.15 Commentators have provided the following reasons why appellate courts

should issue opinions that provide the parties with a basis for a court’s decision: (1)

opinions provide an “informational regulation” that places a check on judicial

behavior; (2) opinions provide a mechanism by which parties are better positioned to


            11
                         Used with great respect to the late Ray Charles.
            12
                         Appellant’s Br. at p. vii.
            13
                         TEX. R. APP. P. 47.4.
            14
                         Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681 (Tex. 2006).
            15
                         Id. at 682.

Daymond Lamont Stewart v. State–Appellant’s Petition for Discretionary Review                    Page 2
act in response; (3) opinions require a court to justify its decision in a more

systematic, logical way; (4) opinions assure parties that their participation in the

justice system was meaningful; and (5) opinions provide a party with a more

meaningful opportunity for further review by a higher court.16 In fact, this Court has

found that reviewing courts should mention a party’s argument and then “explain why

it does not have the persuasive force that the party thinks it does.”17 “The party may

be dissatisfied with the decision, but at least he will know the reason he was

unsuccessful.”18                    This is precisely what the Waco court did NOT do.

            In full, Mr. Stewart questioned the “surrogate testimony” of the scientist who

conducted the DNA testing, in that it failed to meet the constitutional requirement of

cross examination. Mr. Stewart argued he possessed a constitutional right to be

confronted with the analyst of the database. Having no prior right to cross-examine

him, the trial court erred in allowing this testimony to be permitted to be considered

by the jury.

            The Waco court wholesale ignored the issue and arguments of Mr. Stewart. But

the only mention by the Waco court of confrontation is found in a footnote, where the


            16
              See Chad M. Oldfather, Remedying Judicial Inactivism: Opinions As Informational
Regulation, 58 FLA. L. REV. 743, 743 (2006).
            17
                         Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
            18
                         Id.

Daymond Lamont Stewart v. State–Appellant’s Petition for Discretionary Review            Page 3
Court of Appeals found that they were “not persuaded by Stewart’s reliance on the

United States Supreme Court’s decision in Bullcoming v. New Mexico, 131 S. Ct.

2705 (2011).”19 It is not as though the Tenth Court did not understand that Appellant

was making a challenge to the DNA evidence because of a lack of confrontation.20

Nonetheless, the bulk of the opinion is spent on justifying admission of the DNA

results, explaining that DNA has been found to be admissible under the Rules of

Evidence.21 Although accurate, this fails to answer the constitutional question of

whether the Supreme Court’s holdings concerning confrontation require production

of a witness to demonstrate the statistical validity of this number. This is insufficient

for review from this Court.22

            Even more puzzling is the Waco court’s apparent proclamation that the

admissibility under the Texas Rules of Evidence somehow trumps the requirement of

confrontation. Even the Rules of Evidence state that the Constitution of the United


            19
                         Stewart, 2014 WL 6091954, at *4.
            20
                         Stewart, 2014 WL 6091954, at *2.
            21
                         Stewart, 2014 WL 6091954, at*2–*4.
            22
                See, e.g., Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) ( stating that the
appellate court should be provided “with more than cursory, summary or conclusory statements, so
that we are able to discern its reasons for declining to afford relief . . .”); United States v. Valle, 527
F. App’x 158, 159 (3d Cir. 2013) (holding that a reviewing court must be provided, at a minimum,
with an explanation sufficient to see that the particular circumstances of the case have been given
meaningful consideration); ROBERT A. LEFLAR, INTERNAL OPERATING PROCEDURES OF APPELLATE
COURTS 3 (1976) (“[T]he task to the appellate court is to determine if prejudicial errors were
committed at the trial level and to correct them if they were.”).

Daymond Lamont Stewart v. State–Appellant’s Petition for Discretionary Review                         Page 4
States and the Constitution of Texas have “governance” over the Rules of Evidence.23

“In those rare situations in which the applicable rule of evidence conflicts with a

federal constitutional right, Rule 101(c) requires that the Constitution of the United

States controls over the evidentiary rule.”24 Thus, the court of appeals opinion is off

point, and fails to answer Appellant’s claim.

            C.           Remand is necessary to allow the Waco court to answer Appellant’s
                         claim.

            As shown above, the only mention of the denial of confrontation is in the

concluding sentence and footnote. Similar circumstances have required remand. For

instance, the Texas Supreme Court held that when issued a judgment without stating

their reasoning, that court found that “the plaintiffs that they are entitled to more than

this . . .” and reversed.25 Moreover, where the lower court arrived “at its holding

through a contradiction,”26 Presiding Judge Keller, and Judge Meyers joined to dissent

from a denial of petition of discretionary review.


            23
               TEX. R. EVID. 101(c) (“Hierarchical governance shall be in the following order: the
Constitution of the United States, those federal statutes that control states under the supremacy
clause, the Constitution of Texas, the Code of Criminal Procedure and the Penal Code, civil statutes,
these rules, and the common law. Where possible, inconsistency is to be removed by reasonable
construction.”).
            24
                         Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009).
            25
                         Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 680–81 (Tex. 2006).
            26
             Thompson v. State, 987 S.W.2d 64, 65, 713 (Tex. Crim. App. 1999) (en
banc) (Keller, P.J., dissenting from the denial of the petition for discretionary review).
Daymond Lamont Stewart v. State–Appellant’s Petition for Discretionary Review                       Page 5
              Mr. Stewart was entitled, by rule, to an opinion that squarely addressed his

issue as to why he was not entitled to confrontation of the questioned witness.

Instead, his opinion reflects a warmed over rehash of settled law of the “reliability”

of DNA evidence. Mr. Stewart requests that this Court remand this matter to the court

of appeals to address the issue of confrontation as applied to his case.

            D.           Review is necessary.

            This Court has no jurisdiction of the merits of Mr. Stewart’s legal claim, as that

opinion must come from the court of appeals.27 As such, this Court should use its

power of discretionary review “to promote the fair administration of justice by trial

and appellate courts throughout Texas.”28 This is a case that demands that review to

right the scales of justice.

                                                         PRAYER FOR RELIEF

            For the reasons alleged above, Mr. Stewart prays that this Honorable Court will

grant his Petition, and order a brief on the merits of this case, or in the alternative,

grant summary remand to the Waco court of appeals with instructions to directly

answer Appellant’s claim.



            27
                Farrell v. State, 864 S.W.2d 501, 502 (Tex. Crim. App. 1993) (en banc) (holding that
this Court’s review is limited to decisions by the courts of appeals).
            28
              Arcila v. State, 834 S.W.2d 357, 361 (Tex. Crim. App. 1992) (en banc), overruled
on other grounds by Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) (en banc).

Daymond Lamont Stewart v. State–Appellant’s Petition for Discretionary Review                  Page 6
                                                                                Respectfully submitted,

                                                                                LAW OFFICE OF STAN SCHWIEGER


                                                                                /s/ Stan Schwieger

                                                                                Stan Schwieger
                                                                                600 Austin Avenue, Suite 12
                                                                                P.O. Box 975
                                                                                Waco, Texas 76703-0975
                                                                                (254) 752-5678
                                                                                (254) 756-7792 — Facsimile
                                                                                E-mail: wacocrimatty@yahoo.com
                                                                                State Bar No. 17880500
                                                                                ATTORNEY FOR PETITIONER

                                                  CERTIFICATE OF SERVICE

            A copy of this Petition for Discretionary Review has been delivered to the Falls

County District Attorney’s Office, Marlin, Texas, attorney of record for the State of

Texas, by this Court’s electronic filing system and to the State Prosecuting Attorney,

P.O. Box 12405, Austin, Texas, 78711, by first class mail or by electronic mail.

            Signed January 14, 2015.

                                                                                /s/ Stan Schwieger

                                                                                Stan Schwieger




Daymond Lamont Stewart v. State–Appellant’s Petition for Discretionary Review                                    Page 7
     CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4
        Certificate of Compliance with Type-Volume Limitation,
         Typeface Requirements, and Type Style Requirements

1.   This brief complies with the type-volume limitation of TEX. R. APP. P. 9.4(i)
     because this brief contains 1,464 words, excluding the parts of the brief
     exempted by TEX. R. APP. P. 9.4(i)(1).

2.   This brief complies with the typeface requirements and the type style
     requirements of TEX. R. APP. P. 9.4(e) because this brief has been produced on
     a computer in conventional typeface using WordPerfect X7 in Times New
     Roman 14 point font in the body of the brief and Times New Roman 12 point
     font in the footnotes.


                                      /s/ Stan Schwieger

                                     Stan Schwieger
                                     Attorney for Appellant
Stewart v. State, Not Reported in S.W.3d (2014)




                                                  2014 WL 6091954
                                    Only the Westlaw citation is currently available.

                  SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.

                                             MEMORANDUM OPINION
                                                  Do not publish
                                              Court of Appeals of Texas,
                                                        Waco.

                                        Daymond Lamont STEWART, Appellant,
                                                         v.
                                            The STATE of Texas, Appellee.

                            Nos. 10–13–00414–CR, 10–13–00415–CR.               |    Nov. 13, 2014.

From the 82nd District Court Falls County, Texas, Trial Court Nos. 9225 and 9226.

Attorneys and Law Firms

Stan Schwieger, for Daymond Lamont Stewart.

Kathryn Gilliam, for The State of Texas.

Before Chief Justice GRAY, Justice DAVIS, and Justice SCOGGINS.



                                               MEMORANDUM OPINION

AL SCOGGINS, Justice.

 *1 In one issue in both appellate cause numbers, appellant, Daymond Lamont Stewart, challenges his convictions for burglary
of a habitation and aggravated sexual assault. See TEX. PENAL CODE ANN. § 22.021 (West Supp.2014); see also id. §
30.02(c)(2) (West 2011). Specifically, Stewart argues that the trial court denied his constitutional right of confrontation by
allowing evidence of a statistical “match” concerning DNA evidence. We affirm.



                                                    I. BACKGROUND

On the night in question, Lynne Richnow was working as a nurse at the Falls Community Hospital in Marlin, Texas. At around
12:30 a.m., Richnow received a telephone call from her daughter, Lacy Johnson, who was upset. According to Richnow, Johnson
and Johnson's husband were having “an argument, a dispute.” Richnow received permission to leave work to “take care of
[her] kiddos.”

Upon arriving at Johnson's house, Richnow played the role of “mediator, trying to calm everyone down.” During the night,
Richnow drank a beer with Johnson's husband, and Richnow and Johnson smoked a marihuana cigar. About an hour later, the
dispute subsided, and Richnow left.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
Stewart v. State, Not Reported in S.W.3d (2014)


Richnow did not return to work because she had been drinking beer and smoking marihuana. After driving to the hospital to
retrieve Richnow's wallet, Johnson drove Richnow home. During the drive, Richnow recalled seeing “a black male walking
with a white wife beater,” but she did not think anything of it at the time.

When she returned home, Richnow began hanging blinds while drinking a beer and smoking marihuana. Richnow recounted
that, while sitting on her recliner, “a man appears with white covering his face and a red do-rag.” The man told Richnow to give
him all of her money, to which Richnow responded, “I ain't got no money, fool.” The man then took Richnow's marihuana and
hit her when she tried to get out of the recliner. Richnow recalled that the man continued to hit her and eventually pulled off her
pants. Thereafter, the man forced open Richnow's legs and instructed her to play with herself. When she refused to comply, the
man hit Richnow again. Eventually, Richnow complied, and while doing so, the man pulled out his penis, briefly masturbated,
grabbed Richnow's wallet, and took off running.

Once the man left her house, Richnow called 911 and provided dispatch with a description of the man. Later, in a photographic
lineup, Richnow identified Stewart as the perpetrator of the offenses to a 70% degree of certainty. Richnow testified that her
identification of Stewart as the perpetrator was based on his “eyes, his glasses, the width of his—the bridge of his nose.” At
trial, Richnow stated that she was 100% sure that Stewart was the perpetrator.

Stewart was charged by indictment with the offenses of burglary of a habitation and aggravated sexual assault. Included in the
indictments was an enhancement paragraph referencing Stewart's 1999 conviction for felony burglary of a habitation.

 *2 At trial, Serena Zboril, a forensic scientist with the Texas Department of Public Safety Crime Laboratory in Waco, Texas,
testified that she took DNA samples from Richnow's underwear, which yielded a mixture profile of at least three people.
Zboril compared the profile from Richnow's underwear to a buccal swab that had been obtained from Stewart. Based on the
comparison, Stewart could not be excluded as a contributor to the profile. Zboril also compared Stewart's DNA profile to a
profile obtained from Richnow's wallet. The result of the test was a “single-source DNA profile, and that profile is consistent
with the DNA profile of Daymond Stewart.”

At the conclusion of the evidence, the jury found Stewart guilty of the charged offenses. Stewart admitted that the enhancement
paragraphs contained in the indictments were true, and the jury sentenced Stewart to sixty years' incarceration in the Institutional
Division of the Texas Department of Criminal Justice for the count of burglary of a habitation. Stewart received a life sentence
for the count of aggravated sexual assault. The trial court ordered that the imposed sentences run concurrently. These appeals
followed.



                                                 II. STANDARD OF REVIEW

We review a trial court's decision to admit evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736
(Tex.Crim.App.2010). A trial court abuses its discretion only if its decision is “so clearly wrong as to lie outside the zone within
which reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex.Crim.App.2008). A trial court does not
abuse its discretion if any evidence supports its decision. See Osbourn v. State, 92 S.W.3d 531, 538 (Tex.Crim.App.2002). We
will uphold the trial court's evidentiary ruling if it was correct on any theory of law applicable to the case. See De La Paz v.
State, 279 S.W.3d 336, 344 (Tex.Crim.App.2009).



                                                         III. ANALYSIS

In his sole issue, Stewart contends that the trial court abused its discretion by admitting evidence of a statistical “match”
concerning DNA evidence. Specifically, Stewart complains about Zboril's testimony concerning DNA evidence because her
testimony described population ratios that were created by forensic experts of a FBI laboratory who were not called to testify.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
Stewart v. State, Not Reported in S.W.3d (2014)


Stewart asserts that his rights under the Confrontation Clause were violated because he was unable to cross-examine the forensic
experts of the FBI laboratory regarding the formulation of the population ratios.

Pursuant to Texas Rule of Evidence 702, before admitting expert testimony, the trial court must be satisfied that three conditions
are met: (1) that the witness qualifies as an expert by reason of her knowledge, skill, experience, training, or education; (2)
that the subject matter of the testimony is appropriate for expert testimony; and (3) that admitting the expert testimony will
actually assist the factfinder in deciding the case. Jessop v. State, 368 S.W.3d 653, 671 (Tex.App.-Austin 2012, no pet.) (citing
Vela v. State, 209 S.W.3d 128, 131 (Tex.Crim.App.2006); Jackson v. State, 17 S.W.3d 664, 670 (Tex.Crim.App.2000)); see
TEX.R. EVID. 702. These conditions are usually referred to as (1) qualification, (2) reliability, and (3) relevance. Vela, 209
S.W.3d at 131. Reliability focuses on the subject matter of the witness's testimony; the proponent of the expert testimony must
demonstrate by clear and convincing evidence that the expert testimony is reliable. Russeau v. State, 171 S.W.3d 871, 881
(Tex.Crim.App.2005).

 *3 Stewart's complaints center on the reliability of the DNA evidence. To be considered sufficiently reliable, scientific
evidence must meet the following criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the
theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Vela, 209 S.W.3d at
134; see Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992). Factors that could affect the trial court's determination of
reliability include, but are not limited to: (1) the extent to which the underlying scientific theory and technique are accepted as
valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the expert testifying;
(3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) a potential rate of error
of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying
scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the
technique on the occasion in question. Kelly, 824 S.W.2d at 573; see Jessop, 368 S.W.3d at 671.

The record in this case demonstrates that the State satisfied the three criteria to establish the reliability of the DNA evidence.
See Vela, 209 S.W.3d at 134; see also Kelly, 824 S.W.2d at 573. DNA evidence has been held admissible in Texas. Jessop,
368 S.W.3d at 671 (citing Jackson, 17 S.W.3d at 672; Campbell, 910 S.W.2d 475, 478–79 (Tex.Crim.App.1995); Hicks
v. State, 860 S.W.2d 419, 423–24 (Tex.Crim.App.1993), overruled on other grounds by Rosales v. State, 4 S.W.3d 228
(Tex.Crim.App.1999); Kelly, 824 S.W.2d at 573). At a hearing held outside the presence of the jury, Zboril testified regarding the
extraction of the DNA. Defense counsel asked Zboril about how Popstats, the computer database used to analyze DNA samples,
works and objected to Zboril's testimony regarding population ratios. In response to questioning by the trial court, Zboril noted:
“And all of our instruments are validated and our procedures are validated.” When asked who validates the instruments, Zboril
stated: “Our department, as well as probably the manufacturers of the instrument. They make sure that before they release it
to their customers that they—that it does work.” Zboril also testified that she is trained in the use of this program and that this
program is widely used in the industry. Zboril then described how she tested the DNA samples. 1 Because Zboril's testimony
touched on the three criteria used to establish the reliability of DNA evidence, we cannot say that the trial court abused its
discretion by allowing Zboril to testify about a statistical “match” concerning DNA evidence. 2 See Martinez, 327 S.W.3d at
736; De La Paz, 279 S.W.3d at 344; Osbourn, 92 S.W.3d at 538; see also Vela, 209 S.W.3d at 134; Kelly, 824 S.W.2d at 573.

 *4 Nevertheless, at trial and on appeal, Stewart argues that the State should have called an expert witness to demonstrate the
statistical validity of the numbers generated by Popstats. We disagree. Texas courts have held that “the State is not required to
present an expert on probability and statistics in order to show that DNA testing is reliable. Neither Kelly nor Rule 702 requires
such a showing as a prerequisite to admission.” Jessop, 368 S.W.3d at 671–72 (citing Roberson v. State, 16 S .W.3d 156, 168
(Tex.App.-Austin 2000, pet. ref'd); Griffith v. State, 976 S.W.2d 241, 251 (Tex.App.-Amarillo 1998, pet. ref'd). Accordingly,
we cannot conclude that Stewart's constitutional rights were violated. See id.; see also Roberson, 16 S.W.3d at 168; Griffith,
976 S.W.2d at 251. We overrule Stewart's sole issue in both appellate cause numbers.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               3
Stewart v. State, Not Reported in S.W.3d (2014)




                                                            IV. CONCLUSION

We affirm the judgments of the trial court.



Footnotes
1      Later, in the presence of the jury, Zboril testified that: “There is a computer program that we use called Popstats, [which] is generated
        by the FBI. And I take the profiles that I have generated and put those numbers into the computer program and it will give me the
        random match probability.”
2       We are not persuaded by Stewart's reliance on the United States Supreme Court's decision in Bullcoming v. New Mexico, 131 S.Ct.
        2705, 180 L.Ed.2d 610 (2011). In Bullcoming, the Court addressed the following question:
             We granted certiorari to address this question: Does the Confrontation Clause permit the prosecution to introduce a forensic
             laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court
             testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported
             in the certification. Our answer is in line with controlling precedent: As a rule, if an out-of-court statement is testimonial in
             nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the
             accused has had a prior opportunity to confront that witness.
          Id. at 2722 (emphasis added). Here, Zboril testified that she performed the DNA analysis in the forensic laboratory, and the record
          reflects that Zboril was subjected to cross-examination. Accordingly, we find the Bullcoming case to be factually distinguishable.
          See id.


 End of Document                                                           © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                         4
