     AFFIRM; Opinion issued March 6, 20I3




                                                          In The
                                           QIourt of Arjirah
                                  JFiftl! itritt uf Jixa at 1attas
                                                  No. 05-11-01300-CR

                                GUADALUPE JESUS IIERNANDEZ, Appellant
                                                              V.
                                         THE STATE OF TEXAS, Appeflee

                                  On   Appeal from the 194th Judicial District Court
                                                 Dallas County, Texas
                                         Trial Court Cause No. F08-30917-M

                                                    OPINION
                                  Before Justices Lang-Miers, Myers and Richter’
                                            Opinion by Justice Richter


              A jury convicted appellant of murder and assessed punishment of forty years’

     imprisonment and a $5000 fine. In five issues on appeal, appellant contends the trial court erred

     in admitting his recorded statement into evidence, in refusing to submit the issue of voluntariness

     to the jury, in permitting the State’s expert to testify as to cause of death when he did not perform

     the autopsy, and in allowing the introduction of extraneous offense evidence during the

     punishment phase without notice to appellant. Appellant further contends that the combination of

     these alleged errors constitutes cumulative error. Finding no reversible error, we affirm the trial

     court’s judgment.


1.   The Hon. Martin E. Richter, Retired Justice, Sitting by assignment
Background

        Billy Clifton resided in the same apartment complex as appellant. On the day of the

offense he attempted to stop appelhnt from parking in a parking spot that had been reserved for

a resident with a broken leg. Appellant (lid not want to move his car, and an argument ensued. At

the conclusion of the argument, appellant went upstairs to the apartment he shared with Melanie

Olivas. Clifton and the passenger in appellant’s vehicle, Dillard Tomes, remained outside

talking. Appellant emerged from his apartment with a rifle and shot at Clifton and Tomes. Both

Tomes and Clifton initially retreated to their apartments. but Tomes later walked to appellant’s

apartment to try to calm him. As lomnes reached the staircase leading to appellant’s apartment.

he observed appellant descending the stairs with the rifle. At the same time, Clifton reemerged

from his apartment, and was shot.

       Appellant returned to his apartment and informed Olivas that he had shot Clifton.

Appellant also called his sister and admitted that he had killed Clifton. When a policeman

knocked on appellant’s door, he did not answer. But shortly thereafter, appellant emerged from

his apartment and announced ‘1 did it; I shot him.” Appellant was arrested, and informed the

arresting officers that the rifle was under the mattress in the bedroom. During custodial

interrogation, appellant admitted he shot Clifton. Live .22 caliber ammunition was found in the

rifle case, and a spent .22 caliber casing was found at the crime scene, Gunshot residue,

consistent with discharging a firearm, was found on appellant’s hand. At trial, the Medical

Examiner testified that Clifton died as a result of the gunshot wound.

       After hearing all of the evidence, a jury convicted appellant of murder and assessed

punishment at forty years’ imprisonment and a $5000 fine. This appeal followed.
                                           AN AIX SIS

Appellant’s Statement

        In his first issue, appellant maintains the trial court erred in admitting his recorded

statement into evidence because the State failed to provide defense counsel with a copy of the

statement at least twenty days before trial in accordance with Tec Code Crim. Proc. Ann. art.

38.223(a)(5) (West 2005). The State responds that there was no error, or alternatively, any error

was harmless.

        We review a trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. Oprean v.Staie, 201 S.W.3d 724, 726 (Tex. Crirn. App. 2006): Burden v.

State, 55 S.W.3d 608, 615 (Tex. (‘rim. App. 2001). An appellate court will not reverse a trial

court’s ailing unless that ruling falls outside the zone of reasonable disagreement. McCarty i’.

State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008); Zuliani v. State. 97 S.W.3d 589, 595 (Tex.

Crim. App. 2003).

       The admissibility of a defendant’s oral statements is governed by article 38.22, section 3

of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (West 2005).

According to article 38.22, section 3(a)(5), a defendant’s recorded oral statements, made as a

result of custodial interrogation, are not admissible unless, “not later than the 20th day before

the date of the proceeding, the attorney representing the defendant is provided with a true,

complete, and accurate copy of all recordings of the defendant made under this article.” Id.

However, the State is not required to “give” defense counsel a copy of any recorded statements;

rather, it is required to “provide access” to the statements. Lane v. State, 933 S.W.2d 504, 515-17

(Tex. Crim. App. 1996); see also McClenton v. State, 167 S.W.3d 86, 90 (Tex. App.—Waco

2005, no pet.); Tinker v. State, 148 S.W.3d 666, 672 (Tex. App.—Houston [14th Dist.] 2004, no

pet.). As long as defense counsel is informed of the existence of the recording and is permitted


                                                3
reasonable access to a copy, the purpose of article 38.22, section 3(a)(5) has been met, Lane, 933

S.W2d at 51 (; see aiv MeClenton. 167 S.W.3d at 90; Tinker. 14K S.W.3d at 672.

        In the present case, the Affidavit for Arrest Warrant referenced the interview with

appellant and the fact that the interview was captured on a DVD. The case was re-set for trial on

many occasions and at least three different lawyers were appointed for appellant. Iwo years after

the arrest warrant, defense counsel requested a pretrial hearing on numerous issues, including

the voluntariness of appellant’s statement. The court conducted a hearing on the motion

approximately live months before trial. During the hearing, appellant’s trial counsel stated that

he had copies of the police reports. Then, at trial, defense counsel objected to the introduction of

the DVD into evidence because he had only obtained a copy of the DVD four days before trial.

Counsel argued “Statute says it’s their job to give me a copy of it 20 days before trial.” In

response, the prosecutor noted that he was new to the case, hut the previous prosecutor had

provided defense counsel with a copy of the DVD. The State also noted that the Dallas County

District Attorney’s Office maintains an open file policy, and counsel could have reviewed the

video at any time. The new prosecutor further informed the court that while he had not been

asked about the DVD until two weeks before trial, it had always been available for defense

counsel’s review. The trial court overruled the objection.

       Appellant insists that the State is obligated to do more than provide access, and instead

must actually serve defense counsel with a copy of the evidence. This argument is misplaced.

The State is only required to provide access to the recording. Lane, 933 S.W.2d at 515—17. And

facts such as those present in the instant case         —   an investigative report referencing a DVD

coupled with an “open file policy”     —   have been deemed sufficient to meet the State’s burden to

provide the defense access to the recording. See Monroe v. State, Nos. 05-07-00 164-69 CR, 2008

WL 2376990 at   *   3 (Tex. App.   —   Dallas June 12, 2008, no pet.) (not designated for publication).


                                                    4
Therefore, we cannot conclude the trial court erred in       admitting   the recording into evidence.

i\ppcllant’s first issue is overruled.

Voluntariness

        In his second issue, appellant argues the trial court erred in refusing to submit the issue of

voluntariness to the jury. The State responds that an instruction was not required because the

voluntariness of appellant’s statenient was not at issue, or alternatively, appellant (lid not suffer

hann.

        Article 38.21 of the code of criminal procedure provides, ‘A statement of an accused may

he used in evidence against him if it appears that the same was freely and voluntarily made

without compulsion or persuasion, under the rules hereafter prescribed.” Tex. Code Crim. Proc.

Ann, art. 38.21 (West 2005). The requirement that a statement be voluntary has been the law in

Texas for many years. See Oursbourn v. State, 259 S.W.3d 159, 172 n. 40 (Tex. Crim. App.

2008) (citing cain v. State, 18 Tex. 387, 389—90 (1857)).

        The court of criminal appeals has explained that article 38.22, section 6 contemplates the

following sequence of events: (1) a party notifies the trial judge that there is an issue about the

voluntariness of the confession (or the trial judge raises the issue on his own); (2) the trial judge

holds a hearing outside the presence of the jury; (3) the trial judge decides whether the

confession was voluntary; (4) if the trial judge decides that the confession was voluntary, it will

he admitted, and a party may offer evidence before the jury suggesting that the confession was

not in fact voluntary; (5) if such evidence is offered before the jury, the trial judge shall give the

jury a voluntariness instruction. Oursbourn, 259 S.W.3d at 175.

        Under article 38.22, there is no error in refusing to include a jury instruction when there

is no evidence before the jury to raise the issue. See Miniel v. State, 831 S.W.2d 310, 3 16—17

(Tex. Crim. App. 1992). Before the requirement is triggered, some evidence must be presented


                                                  5
that raises the voluntariness issue, Butler v. State, 872 S.W.2d 227, 236 (Tex. (Tex, Crim. App.

App. 1994). “Only when some evidence is presented that a confession is not voluntary is the

matter    put   in issue.” Mink’I, 83! S. W.2d at 317.

          Conversely, “lain instruction must be given if a reasonable jury, viewing the totality of

the circumstances, could have found that the statement was not voluntarily made.” Vasquec v.

State’,   225   S.W.3d 541, 545 (‘fex. Crim. App. 2007); sc’e also Evtrada v, State, 313 S.W.3d 274,

299—300 (Tex. Crim. App. 2010) (“Assuming that appellant offered evidence before the jury

suggesting that the confession was not in fact voluntary, we decide that appellant was not entitled

to an Article 38.22, § 6 voluntariness instruction because no reasonable jury could find that the

facts, disputed or undisputed, rendered him unable to make a voluntary statement.”). A

confession may be found involuntary when “the totality of the circumstances demonstrates that

the confessor (lid not make the decision to confess of his own free will.” Green v. State, 934

S.W.2d 92, 99 (Tex. Crim. App. 1996). “The ultimate question is whether the suspect’s will was

overborne.” Creager       i’.   State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997)

          A claim under section 6 that an accused’s statement was involuntarily made may include

situations involving police overreaching, youth, intoxication, illness or medication, mental

incapacitation, or other disabilities. See Ourshourn, 259 S.W.3d at 172—73. Here, appellant

emphasizes the evidence that he was under the influence of alcohol, but he points to no evidence

of a causal connection between this fact and his alleged inability to knowingly and voluntarily

waive his constitutional rights. See Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996)

(holding trial court did not err in admitting appellant’s confession because appellant presented no

evidence as to whether his alleged intoxication rendered him incapable of making a voluntary

decision). On direct examination, Detective Joe Wood testified that appellant smelled of alcohol

and slurred his speech. When Detective Wood asked appellant if he had been drinking, appellant


                                                         6
     stated that he had consumed two beers the previous evening. When appellant’s counsel cross

     examined Detective Wood, he elicited the admission that there was no doubt that appellant was

     under the influence, but the Detective did not know “to what degree” Detective Wood also

     agreed that alcohol may affect a persons comprehension.

              Viewing this evidence in the context of whether a reasonable jury could have ftund

     appellant’s statement was not voluntarily made. we have some reservations about whether

     appellant was entitled to an instruction. But even if we assume appellant was entitled to an

     instruction, we cannot conclude appellant suffered harm! Appellant admitted to shooting Clifton

     numerous times prior to his arrest. Olivas testified that appellant described the altercation in the

     parking lot, and when he returned to the apartment with the gun, appellant told her that he shot

     “him.”Appellant’s sister testified that appellant admitted to her that he shot Clifton. Detective

     Wood and the other officer on the scene both testified that appellant emerged from his apartment

     and announced, “I did it; I shot him.” Therefore, because the record reflects that appellant’s

     conviction did not turn on the admissibility of the statement appellant made to the police after his

     arrest, we conclude appellant suffered no harm. Appellant’s second issue is overruled.

     Confrontation Clause

              In his third issue, appellant argues the trial court erred in allowing Dr. Chester Gwin, a

     physician from the Medical Examiner’s office, to give his expert opinion on the cause of

     Clifton’s death. Appellant contends that, under Me1ende-Diac v. Massachusetts, 557 U.S. 305

     (2009), and its progeny, the trial court violated his right to confront witnesses against him

     because Gwin neither performed nor was present during the autopsy. In essence, appellant




2.   Because appellant timely objected to the charge, we analyze harm in terms of whether it was “calculated to injure
     the rights of the defendant,” which means that the accused has suffered some harm from the error. Almanza v. State.
     686 S.W.2d 157. 171 (Tex. Crim. App. 1985).


                                                             7
asserts that Gwin was acting as a con(lmt expert for another expert’s opinion. We disagree with

appellant’s contefltion.


        The Confrontation Clause of the Sixth Amendment of the United States Constitution,

applicable to the states through the Fourteenth Amendment provides that                    “tim   all criminal

prosecutions, the accused shall enjoy the right       .   *   .   to he confronted with the witnesses against

him.” U.S. Const. amend. VI; Pointer v. Texas. 380 U.S. 400, 403 (1965). In Cravford v.

Washington, 541 US. 36 (2004), the Supreme Court held that outofcourt testimonial evidence

violates the Confrontation Clause unless the declarant is unavailable to testify and the defendant

had a prior opportunity to cross-examine him. Id. at 68. The court noted, however, that not all

testimonial hearsay is prohibited; the Confrontation Clause only prohibits the use of testimonial

hearsay to prove the truth of the matter asserted. Id. at 56, n. 9. “Generally speaking, a hearsay

statement is ‘testimonial’ when the surrounding circumstances objectively indicate that the

primary purpose of the interview or interrogation is to establish or prove past events potentially

relevant to later criminal prosecution.” Dc La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crirn.

App. 2008).

       In Me!endez-Diaz, the court held that the admission of certificates of analysis, offered by

the prosecution in a drug trial, stating that the material seized by police and connected to the

defendant was cocaine of a certain quantity, violated the defendant’s Sixth Amendment right to

confront the witnesses against him. Specifically, the court found that the certificates of analysis

were more appropriately described as affidavits and fell within the “core class of testimonial

statements” covered by the Confrontation Clause. Melendez-Diaz, 557 U.S. at 310. The court

reasoned that the certificates were sworn declarations of fact made for the purpose of

establishing or proving some fact-namely, that the substance found was cocaine. Id. Accordingly,

the affidavits were “made under circumstances which would lead an objective witness


                                                  8
reasonably to believe that the statement would be available for use at a later triaL” Id. Because

the analysts’ affidavits were testimonial, the court found the analysts were witnesses for the

purposes of the Sixth Amendment. Id. Therefore, unless the analysts were unavailable to testify

at trial and the defendant had been afforded a prior opportunity to crossexamine them, the

Confrontation Clause required that the prosecution call the analysts to testify. Id.

        In Bullcomin v. iVew Mexico, 13! S.Ct. 2705. 2710 (2011), the Court addressed

“surrogate testimony” in the context of a driving while intoxicated case. In that case, the forensic

analyst assigned to test Bullcotning’s blood sample created and signed the “Report of Blood

Alcohol Analysis.” Id. At trial, the State called a different analyst who was familiar with the

laboratory testing procedure but did not participate in or observe the testing on Bulicoming’s

blood sample. See id. at 2709, The Court concluded the admission of the forensic analyst’s report

concerning blood alcohol concentration was a violation of Bulicoming’s right to confrontation

because a surrogate analyst, rather than the analyst who prepared the report, testified from the

report. Id. at 27 15—16.

        More recently, in a plurality opinion, the Supreme Court concluded the admission of

expert testimony regarding the results of DNA testing performed by non-testifying analysts did

not violate the Confrontation Clause. See Williams v. Illinois, 132 S.Ct. 2221 (2012). In

Williams, an expert witness relied on a DNA profile procured from a third-party laboratory,

Celimark, which had performed the DNA testing before a suspect was identified in the criminal

investigation. Id. at 2227—28, 2234. The expert testified as to the following: Celimark was an

accredited lab; the Illinois state police lab occasionally sent forensic samples to Ceilmark for

DNA testing; the police lab sent vaginal swabs taken from the victim to Ceilmark and later

received those swabs back from Cellmark; and the Celimark DNA profile matched a profile

produced by the police lab from a sample of the defendant’s blood. Because the witness had


                                                 9
personal knowledge of each of these matters, the Court held that her testimony did not violate the

Confrontation Clause. Id. at 2227—2k). Significantly, however, the plurality noted that the lab

ieport about which the expert testified (the report was not admitted into evidence) was prepared

before a suspect was identified. “The report was sought not for the purpose of obtaining evidence

to be used against petitioner, who was not even under suspicion at the time, hut for the purpose

of finding a rapist who was on the loose.” hi. at 2228. in addition, the plurality also noted that

the profile was not inherently inculpatory. Thus, had Ceilmark’s DNA report been introduced

into evidence, it likewise would     not have violated the Confrontation Clause because it was not

created for the primary purpose of obtaining evidence to use against the defendant: rather, it was

created “for the   purpose of finding a rapist who was on the loose.” Id.

        The underlying principle in the foregoing cases is clear; cloaking inadmissible

testimonial hearsay as expert opinion does not redeem the character of the evidence. But

appellant’s argument that Owin’s testimony should be so categorized ignores an important

distinction   —    whether the expert is giving an independent judgment or merely acting as a

transmitter for   the testimonial hearsay.

       In the instant case, Dr. Pickard from the Medical Examiner’s office performed the

autopsy and prepared the autopsy report. But the State did not use Gwin to introduce the autopsy

report into evidence. Instead, Gwin testified about the conclusion he reached after reviewing the

autopsy report, the photographs, and the scene investigative history. Gwin explained that in cases

of homicide, once a doctor in the Medical Examiner’s office completes an autopsy and generates

a report, the file is circulated to the other medical examiners to review for quality assurance

purposes. The file includes the report, medical records, and investigative records, and

photographs are available for review online. If the other medical examiners agree with the cause

of death stated in the report, they have the option to sign the report to indicate their agreement


                                                  10
with the findings. ciwin received and reviewed the Clifton file and report after Pinckard

completed the autopsy, and after conducting a review, signed to indicate his agreement with the

conclusion as to cause of death.

         Based on his review. Gwin concluded that Clifton died as a result of a “gunshot wound to

the back or trunk,” and the manner of death was homicide. Gwin affirmed that his opinion was

based on his ow independent conclusion derived from the information he reviewed.

         During his testimony, Gwin also explained what the photographs he reviewed in forming

his opinion depicted. including one showing a small caliber projectile and another showing

where the gunshot entered through the victim’s back. Significantly, appellant’s counsel not only

had an opportunity to cross-examine Gwin about his conclusions, but did so. Appellant’s counsel

elicited testimony that there was no stippling or soot found on the wound, which indicated that

Clifton was not shot a close range. Counsel also examined Gwin about the fact that Pinckard was

the doctor who performed the autopsy and prepared the report. Therefore, unlike the cases upon

which appellant relies to support his argument, Gwin’s testimony was not an after-the-fact

explanation of Pinckard’s opinion, but rather an explanation of his independent conclusion in the

case. See Jameson v. State, 383 S.W.3d 309, 312 (Tex. App.          —   Dallas 2012, no pet.). Under

these circumstances, we cannot conclude the trial court erred in admitting Gwin’s testimony.

         But even if the trial court erred in admitting the testimony, appellant has failed to identify

what harm, if any, may have resulted. Because the complained-of error is of constitutional

magnitude, we must be satisfied beyond a reasonable doubt that the claimed error did not

contribute to the conviction or punishment. Tex.R.App. P. 44.2(a). In conducting this harm

analysis, we consider the likelihood that the constitutional error adversely affected “the integrity

of the process leading to the conviction.” Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App.

2007).


                                                   11
        Nothing in this record supports such a conclusion. No one contested that Clifton died of a

gunshot wound, so the cause of death was not at issue. Appellant admitted to several people that

he shot the victim, and the police recovered both the gun and the ammunition. Moreover, as we

have previously noted, appellant was not deprived of an opportunity to crossexamme Gwin

about his conclusion, and exercised his right to do so. Therefore, even if we were to assume

error, we cannot conclude appellant suffered harm. Appellant’s third issue is overruled.

Extraneous Offense

        In his fourth issue, appellant argues the trial court erred in allowing the State to introduce

evidence that he was arrested for fighting while out on bond in the present case. According to

appellant, the State should not have been allowed to introduce testimony of an extraneous

offense without first provviding him notice pursuant to article 37.07 of the code of criminal

procedure. We are not persuaded by this argument.

       The statute upon which appellant relies provides, “On timely request of the defendant,

notice of intent to introduce evidence under this article shall be given in the same maniier as

required by Rule 404(b), Texas Rules of Evidence.” Tex. Code Crim. Proc. Ann. art. 37.07, §

3(g) (West Supp. 2012). Thus, article 37.07, section 3(g) incorporates by reference the manner of

notice required by Texas Rule of Evidence 404(b). See Jaubert v. State, 74 S.W.3d 1, 2 (Tex.

Crim. App. 2002). Rule 404(b) provides in pertinent part as follows:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the character
       of a person in order to show that he acted in conformity therewith. It may,
       however, be admissible for other purposes, such as proof of motive, opportunity,
       preparation, plan, knowledge, identity, or absence of mistake or accident,
       provided that upon timely request by the accused in a criminal case, reasonable
       notice is given in advance of trial of intent to introduce in the State’s case-in-chief
       such evidence other than that arising in the same transaction.

Tex.R. Evid. 404(b). Therefore, both article 37.07, section 3(g) and rule 404(b) condition the

admissibility of extraneous offense evidence on the State’s compliance with the notice provision


                                                 12
found in the rule. TEX. R. Evin. 404 Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crini.

App. 2005). The court of criminal appeals has held, however, that the notice requirement applies

only to evidence introduced in the State’s case in chief Iitbert 74 S.W.3d at 3. When the State

presents extraneous offense evidence in rebuttal or during cross examination, appellant is not

entitled to notice. Id at 4: Torres   i.   State, No.05M90O24lCR, 2010 WL 2044900 at *2 (Tex.

App.   —   Dallas May 25, 2010, no pet.) (not designated for publication).

        Here, after appellant’s mother testified about appellant’s criminal history on direct

examination, the State elicited testimony about the extraneous offense through cross—

examination. Because the testimony was elicited on cross-examination, the State did not violate

the statutory notice requirements and the trial court did not err in admitting the evidence.

Appellant’s fturth issue is overruled.

Cumulative Error

        In his fifth issue, appellant contends the combined effect of the four alleged errors

discussed above constitutes cumulative error. We have concluded that there is no error.

Therefore, it follows that there is no cumulative error. Appellant’s fifth issue is overruled.




                                                        MARTIN RdHEk
                                                        JUSTICE, ASSIGNED



DO NOT PUBLISH
TEX. R. APP. P.47

ii 1300F.U05




                                                   13
                                            Lii    %lrZthi
                       iFift1 Oiitrirt øf !Jixa tt Oi1tai
                                       JUDGMENT

HERNANDEZ, GUADALUPE JESUS,                        On Appeal from the 194th Judicial District
Appellant                                          Court, Dallas County, Texas
                                                   Trial Court Cause No. F08-30917-M,
No. 05-1 1—0 1300-CR       V.                      Opinion delivered by Justice Richter.
                                                   Justices Lang-Miers and Myers
THE STATE OF TEXAS, Appellee                       participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 6th day of March, 2013.




                                                  MARl IN RECIIIER
                                                  JUSTICE. ASSIGNED
