Opinion issued July 11, 2019




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-17-00860-CR
                            ———————————
                      DURON ROBIN LEWIS, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 337th District Court
                            Harris County, Texas
                        Trial Court Case No. 1517015


                          MEMORANDUM OPINION

      Duron Lewis was convicted of aggravated sexual assault and sentenced to 60

years’ confinement. See TEX. PENAL CODE § 22.021(a). In three issues, Lewis

contends that (1) the trial court abused its discretion in admitting the forensic

report of a non-testifying analyst, (2) he received ineffective assistance of counsel
during the guilt-innocence phase of trial, and (3) he received ineffective assistance

of counsel during the punishment phase of trial.

      We affirm.

                                   Background

      One evening in February 2014, the complainant, pseudonymously referred to

as Sarah Brown, was walking from her apartment to a nearby drugstore, when she

noticed a white car pulling up behind her. A man, later identified as Lewis, got out

of the back of the car, grabbed Brown by the arm, and forced her into the backseat

with her head positioned on the floorboard.

      Inside the car, there were four men speaking both English and Spanish. They

placed a blindfold over Brown’s eyes and threatened to kill her if she did not

cooperate. The men then drove Brown to an apartment and took her to an upstairs

room. Once upstairs, the men removed Brown’s clothing, held her down, and

sexually assaulted her.

      The following morning, the men dressed Brown, put her in the backseat of

the car with her head positioned on the floorboard, drove her to a parking lot, and

abandoned her there after stealing her wallet. Brown took a bus to her friend’s

house and then called her boyfriend, who picked her up and drove her to the

hospital.




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      At the hospital, Brown provided the police with a statement and underwent a

forensic examination, which revealed trauma consistent with having been sexually

assaulted. DNA samples collected from various areas of Brown’s body were sent

to Bode Laboratory for DNA analysis. Analyst S. Gault testified that male DNA

was found on swabs of Brown’s vagina, outer labia majora, labia minora, and left

breast.

      Officer J. Pena with the Houston Police Department Sex Crimes Unit

reviewed the Combined DNA Index System (CODIS) Offender Report and

discovered that Lewis’s DNA positively matched DNA collected from Brown.

Officer Pena created a photographic lineup that included Lewis’s photograph. The

lineup was shown to Brown, who circled Lewis’s photo as well as the photo of a

second unrelated man, as Brown was not 100 percent certain of her identification.

      Officer Valentin and Officer Daniel with the HPD Sex Crimes Unit met with

Lewis and his attorney and obtained a consensual buccal swab from Lewis. The

Houston Forensic Science Center compared the DNA profile from the swab

obtained from Lewis with the DNA profiles from the swabs obtained from Brown.

      Lewis could not be excluded as a possible contributor to the male DNA

profile from the vaginal swabs. The probability that a randomly chosen unrelated

individual would be included as a possible contributor was approximately 1 in 22

quintillion for African Americans. (Lewis is black.) Lewis could not be excluded


                                        3
as a possible contributor to the major component of the DNA mixture from the

outer labia majora swabs. The probability that a randomly chosen unrelated

individual would be included as a possible contributor to the major component of

the DNA mixture was approximately 1 in 68,000 African Americans. Finally,

Lewis could not be excluded as a possible contributor to the DNA mixture

obtained from the labia minora swabs. The probability that a randomly chosen

unrelated individual would be included as a possible contributor was

approximately 1 in 46 quadrillion for African Americans.

      Lewis was indicted, tried, and convicted of aggravated sexual assault. After

Lewis was sentenced, trial counsel filed a motion to withdraw. The trial court

granted the motion and appointed a public defender to represent Lewis on appeal.

Through his newly-appointed counsel, Lewis moved for a new trial, alleging that

he received ineffective assistance of counsel during both phases of trial. The trial

court denied the motion. Lewis appeals.

                          Admission of Forensic Report

      In his first issue, Lewis contends that the trial court abused its discretion in

admitting the Bode forensic report through the testimony of S. Gault, a Bode

analyst who did not actually test the swabs obtained from Brown or develop the

DNA profiles. Lewis contends that the admission of the report through Gault’s

surrogate testimony violated his Sixth Amendment right of confrontation. See


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Paredes v. State, 462 S.W.3d 510, 517–18 (Tex. Crim. App. 2015) (holding that

admission of testimonial lab report through surrogate testimony violates

Confrontation Clause). The State responds that Lewis has not preserved the issue

for appellate review because he did invoke his right to confrontation at trial. We

agree with the State.

      A timely and reasonably specific objection is required to preserve error for

appellate review. TEX. R. APP. P. 33.1(a). An objection must comport with the issue

raised on appeal. Fuller v. State, 827 S.W.2d 919, 928 (Tex. Crim. App. 1992);

Smith v. State, 236 S.W.3d 282, 291 (Tex. App.—Houston [1st Dist.] 2007, pet

ref’d). If an objection made in the trial court differs from the complaint raised on

appeal, the defendant has not preserved any error for review. Butler v. State, 872

S.W.2d 227, 236 (Tex. Crim. App. 1994).

      Confrontation Clause claims are subject to this general preservation

requirement. Scott v. State, 555 S.W.3d 116, 126 (Tex. App.—Houston [1st Dist.]

2018, pet. ref’d). Thus, a defendant’s failure to object on Confrontation Clause

grounds at trial waives a Confrontation Clause complaint for appellate review. Id.

      At trial, Lewis made a general evidentiary objection that the State had failed

to lay a “proper foundation” for the report’s admission because Gault “did not do

the analysis.” See TEX. R. EVID. 901(a) (“To satisfy the requirement of

authenticating or identifying an item of evidence, the proponent must produce


                                         5
evidence sufficient to support a finding that the item is what the proponent claims

it is.”). But he did not make a Confrontation Clause objection. Thus, Lewis has

waived any Confrontation Clause argument on appeal. See Reyna v. State, 168

S.W.3d 173, 179–80 (Tex. Crim. App. 2005) (holding defendant waived

Confrontation Clause issue when he asserted only basis for admission of cross-

examination testimony “was to attack the victim’s credibility”); Mitchell v. State,

238 S.W.3d 405, 408–09 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (noting

“[e]ven constitutional error may be waived by failure to object at trial” and holding

defendant waived review of issue on appeal because he did not object to testimony

on Sixth Amendment grounds at trial); Campos v. State, 186 S.W.3d 93, 97–98

(Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding that “because appellant

objected only to [witness]’s testimony on hearsay grounds, and not constitutional

grounds, he did not preserve” complaint that testimony violated Confrontation

Clause).

      We overrule Lewis’s first issue.1




1
      In his appellate brief, at the very end of the section addressing the trial court’s
      admission of the forensic report, Lewis contends that, to the extent his trial
      counsel’s objection failed to preserve his Confrontation Clause complaint, trial
      counsel rendered ineffective assistance. However, Lewis fails to address either
      prong of this ineffective-assistance claim, and we therefore decline to consider it
      here. See TEX. R. APP. P. 38.1(i).

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                          Ineffective Assistance of Counsel

         In his second and third issues, Lewis argues that the trial court abused its

discretion in denying his motion for new trial because he established that he

received ineffective assistance of counsel during both the guilt-innocence and

punishment phases of trial. The State responds that the record is not sufficiently

developed to establish that Lewis received ineffective assistance at either phase of

trial.

A.       Applicable law and standard of review

         We review a trial court’s denial of a motion for new trial for an abuse of

discretion. Cotton v. State, 480 S.W.3d 754, 756 (Tex. App.—Houston [1st Dist.]

2015, no pet.). When the motion alleges ineffective assistance of counsel, we

review the totality of circumstances of the representation to determine whether the

trial court’s ruling was “so clearly wrong as to lie outside the zone of reasonable

disagreement.” Id. (internal quotations and citation omitted).

         To prevail on a claim for ineffective assistance of counsel, a defendant must

satisfy the two-prong test set forth by the United States Supreme Court

in Strickland v. Washington, 466 U.S. 668 (1984). Macias v. State, 539 S.W.3d

410, 415 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).

         Under the first prong, “the defendant must show that counsel’s performance

was deficient.” Strickland, 466 U.S. at 687. This requires the defendant to prove


                                           7
“that counsel’s performance fell below an objective standard of reasonableness,

considering the facts of the particular case and judged at the time of counsel’s

conduct.” Ex parte Gonzales, 204 S.W.3d 391, 393 (Tex. Crim. App. 2006).

      Under the second prong, “the defendant must show that the deficient

performance prejudiced the defense.” Strickland, 466 U.S. at 687. This requires the

defendant to prove “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Mitchell v. State, 68 S.W.3d 640, 642

(Tex. Crim. App. 2002); Macias, 539 S.W.3d at 415.

      In reviewing a claim for ineffective assistance of counsel, we are “highly

deferential” to trial counsel. Macias, 539 S.W.3d at 415–16. We indulge a “strong

presumption” that trial counsel’s performance “fell within the wide range of

reasonable professional assistance.” Ex parte LaHood, 401 S.W.3d 45, 50 (Tex.

Crim. App. 2013).

      To prove that counsel’s performance was deficient, “the defendant must

overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Blackwell v. State, 193 S.W.3d 1, 21

(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (quoting Strickland, 466 U.S. at

689). “Any allegation of ineffectiveness must be firmly founded in the record,


                                        8
which must demonstrate affirmatively the alleged ineffectiveness.” Blackwell, 193

S.W.3d at 21. And “trial counsel should ordinarily be afforded an opportunity to

explain his actions before being denounced as ineffective.” Rylander v. State, 101

S.W.3d 107, 111 (Tex. Crim. App. 2003).

      Thus, if the record does not contain affirmative evidence of counsel’s

reasoning or strategy, we normally presume that counsel’s performance was not

deficient. Blackwell, 193 S.W.3d at 21. “In rare cases, however, the record can be

sufficient to prove that counsel’s performance was deficient, despite the absence of

affirmative evidence of counsel’s reasoning or strategy.” Id.

B.    Analysis

      Lewis contends that trial counsel rendered ineffective assistance by failing to

(1) consult a DNA expert, (2) interview potential alibi witnesses, or (3) develop

mitigating evidence. We consider each contention in turn.

      1.     Failure to consult DNA expert

      First, we consider whether Lewis established that trial counsel rendered

ineffective assistance by failing to retain a DNA expert to testify at trial or

otherwise assist in trial preparation.

      Appellate counsel did not subpoena trial counsel to appear at the hearing on

Lewis’s motion for new trial, and trial counsel did not appear at the hearing

voluntarily. Thus, to show that trial counsel failed to retain a DNA expert,


                                         9
appellate counsel presented trial counsel’s case voucher, which did not include

costs for experts. And to show that trial counsel’s failure to retain a DNA expert

constituted ineffective assistance, appellate counsel presented a letter from the

Director of the Center for Statistical Genetics at Baylor College of Medicine,

Professor Suzanne Leal.2 Leal’s letter states in full:

      I have reviewed the Houston Forensic Science Center’s DNA case file
      [for Lewis’s case]. There are biases which could affect the calculation
      of the presented probabilities and also of obtaining DNA matches,
      which include 1) that the laboratory calculated the random match
      probability (RMP) for the sperm component of the mixtures involved
      in the case by deconvoluting the simple mixture and treating the
      “major contributor” as a single source when calculating the RMP; 2)
      there is a high likelihood of accidentally finding a match unrelated to
      the case in the CODIS DNA database; and 3) the random match
      probability is not reliably applied in this case. Additionally, the
      interpretation of the presented probabilities is not straightforward and
      would require detailed information about the databases included in the
      CODIS search.

      It would be highly advisable to have an expert with expertise in
      forensic DNA analysis and statistical genetics consult on this case.

      Appellate counsel argued that HFSC had used the “wrong statistic” to

calculate the random match probability, i.e., the probability that a randomly

selected, unrelated person in a given population group would have the same DNA

profile as the evidentiary sample, assuming the unrelated person was not in fact the

2
      Appellate counsel also presented a table showing the size of the CODIS database;
      a chapter from the National Research Council’s 1996 genetics report; various law
      journal articles; and Young v. United States, 63 A.3d 1033 (D.C. 2013), an opinion
      that addresses how to rebut evidence of random match probability.

                                          10
source of the DNA in the sample. Appellate counsel further argued that Lewis was

prejudiced by trial counsel’s failure to consult with an expert because an expert’s

testimony regarding the correct statistical analysis would have affected the

credibility of the DNA report and would have shown that it was “less likely that

this happened as the State said.”

      Lewis makes the same arguments on appeal. He contends that, had trial

counsel retained a DNA expert, it would have improved trial counsel’s

understanding of DNA analysis and statistical genetics and thus “would have

helped him raise the questions raised in [Leal]’s letter for effective cross-

examination of the Bode and HFSC analysts.” Lewis emphasizes that Leal’s letter

identifies areas wherein the protocols used by HFSC “were at best controversial.”

      To establish that counsel was ineffective for failing to retain an expert

witness, Lewis had to present evidence showing that an expert was available and

could have offered beneficial testimony. See Jones v. State, 500 S.W.3d 106, 116

(Tex. App.—Houston [1st Dist.] 2016, no pet.) (holding that defendant failed to

prove trial counsel rendered ineffective assistance for failing to engage two expert

witnesses when defendant failed to present “evidence showing that such experts

were available or that either could have offered beneficial testimony”); Cantu v.

State, 993 S.W.2d 712, 719 (Tex. App.—San Antonio 1999, pet. ref’d) (“A

defendant who complains about trial counsel’s failure to call witnesses must show


                                        11
the witnesses were available and that he would have benefitted from their

testimony”).

      But Lewis has not shown that Leal (or any other expert) would have been

available to testify on Lewis’s behalf. Nor has Lewis shown that testimony from

Leal (or another expert) would have benefitted him.

      In her letter, Leal states that the method by which HFSC calculated the RMP

was “biase[d].” But Leal fails to show that a different method would have resulted

in a different RMP. Likewise, in the letter Leal concludes that there is a “high

likelihood” of finding an unrelated match in the CODIS DNA database and that the

RMP was “not reliably applied” in this case. But she does not explain how she

reached her conclusions. She does not quantify the probability of finding an

unrelated match in the CODIS database. Nor does she explain how the RMP was

unreliably applied. Leal’s letter is conclusory.

      The HFSC concluded the chance that Lewis’s DNA profile might incorrectly

match the evidentiary profiles obtained from the vaginal swabs and labia minora

swabs of the complainant was exceedingly low—approximately 1 in 22 quintillion

for African Americans. Thus, a recalculation of the RMP would be unlikely to

influence a jury unless it drastically increased the probability that a randomly

chosen unrelated individual would be included as a possible contributor to the

DNA profile. See Young v. United States, 63 A.3d 1033, 1056 (D.C. 2013) (“What


                                          12
difference could it really make to a jury, for example, if the RMP were increased

even a thousand-fold, to one in 2.8 quadrillion? That still would be an extremely

low random match probability.”).

      We conclude that the trial court could have reasonably determinized that

Lewis failed to establish that he was prejudiced by trial counsel’s failure to retain a

DNA expert.

      2.     Failure to interview and present potential alibi witnesses

      Next, we consider whether Lewis established that trial counsel rendered

ineffective assistance by failing to interview potential alibi witnesses. Lewis

contends that trial counsel rendered ineffective assistance by failing to interview

potential fact witnesses who might have been able to provide an alibi or otherwise

testify as to the “improbability” that Lewis “committed the offense.”

      In support of this claim, Lewis relies on the affidavits of three potential alibi

witnesses: his brother, his ex-girlfriend, and his cousin. In the affidavits, each

witness made general assertions that Lewis could not have committed the offense

because he was always home with his family. But none of them attested to Lewis’s

whereabouts on the date of the offense. Lewis speculates that, had trial counsel

contacted these witnesses before trial, “he might well have been able to elicit from

them specific facts about the actual night in question and the reasons they were

each sure [Lewis] had been with them then.”


                                          13
      To establish prejudice because of trial counsel’s failure to call these

witnesses during the guilt-innocence phase of trial, Lewis is required to show that

he would have benefited from their testimony. Perez v. State, 310 S.W.3d 890, 894

(Tex. Crim. App. 2010) (“We stated that the ‘failure to call witnesses at the guilt-

innocence and punishment stages is irrelevant absent a showing that such witnesses

were available and appellant would benefit from their testimony.’”). Lewis has

failed to do so. Lewis would not have benefited in any meaningful way from the

testimony of these witnesses because the testimony does not actually provide an

alibi for Lewis at the time of the offense. See id. at 895 (holding that defendant was

not prejudiced by trial counsel’s failure to call alibi witness when witness was

unable to place defendant in location other than scene of crime at relevant time).

Lewis’s speculation that trial counsel could have elicited further testimony from

these witnesses is insufficient to support a claim of ineffective assistance. See Bone

v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002) (“Ineffective assistance of

counsel claims are not built on retrospective speculation; they must ‘be firmly

founded in the record.’”).

      We conclude that the trial court could have reasonably determinized that

Lewis failed to establish that he was prejudiced by trial counsel’s failure to

interview these witnesses.




                                         14
      3.     Failure to develop mitigating evidence

      Finally, we consider whether Lewis established that trial counsel rendered

ineffective assistance by failing to develop mitigation evidence to present during

the punishment phase of trial.

      In support of his claim that trial counsel rendered ineffective assistance

during the punishment phase of trial, Lewis relies on the affidavits of his brother,

ex-girlfriend, cousin, and mother, all of whom state they would have testified for

Lewis had they been asked. Lewis contends that trial counsel’s failure to interview

these four witnesses and present their testimony during punishment constituted

ineffective assistance. We disagree.

      The record does not show that Lewis would have benefited from the

testimony of these four potential witnesses. See Lumpkin v. State, 129 S.W.3d 659,

665 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (holding that defendant may

base ineffective-assistance claim on failure to present witnesses only if defendant

can show that witnesses were available and that their testimony would have

benefitted defendant).

      Lewis’s brother submitted an affidavit stating that, while in school, Lewis

was placed in special education classes. But the PSI Report presented to the trial

court already stated that Lewis had only completed the ninth grade, had been




                                        15
placed in “behavioral classes” while in school, and had experienced “difficulty

with reading.”

      Lewis’s ex-girlfriend submitted an affidavit stating that, in 2015, Lewis

smoked a cigarette that was “laced” with “some kind of drug” and suffered a “head

injury” in a car accident, both of which may have resulted in “behavioral changes.”

But the sexual assault for which Lewis was convicted occurred in 2014. Lewis

does not explain how these events that occurred after the offense would have been

relevant in assessing his punishment.

      Lewis’s mother submitted an affidavit that provided essentially the same

testimony as Lewis’s ex-girlfriend, except that she said that the car accident

occurred in 2013, not 2015. However, the record shows that, unlike Lewis’s

brother and ex-girlfriend, trial counsel contacted Lewis’s mother on multiple

occasions. Presumably, trial counsel’s decision not to call Lewis’s mother to testify

to Lewis’s character was based on legitimate trial strategy. For example, trial

counsel could have reasonably determined that any nominal benefit from testimony

from Lewis’s mother (or from his brother or ex-girlfriend, for that matter) would

be outweighed by the risk that the State would elicit prejudicial testimony on cross-

examination that Lewis had a history of assaultive behavior and was becoming

increasingly aggressive. See Bone, 77 S.W.3d at 834–35 (observing that trial

counsel could have reasonably determined that potential benefit of introducing


                                         16
mitigating testimony during punishment phase was outweighed by risk of

unfavorable counter-testimony).

      The final affidavit submitted by Lewis’s cousin does not contain any

information pertinent to the issue of punishment. Although Lewis refers to trial

counsel’s failure to interview all four potential witnesses, Lewis does not attempt

to demonstrate how his cousin’s testimony would have been beneficial at

sentencing.

      Lewis further contends that trial counsel should have presented Lewis’s

medical records from a psychiatric hospital to which he was admitted in 2015.

Again, we disagree that Lewis would have benefited from the introduction of these

records, which show that he was admitted in July 2015 for choking his then-

pregnant girlfriend and pushing her against a wall. See Sanders v. State, No. 01-15-

00954-CR, 2017 WL 2806785, at *4 n.5 (Tex. App.—Houston [1st Dist.] June 29,

2017, pet. ref’d) (mem. op., not designated for publication) (noting that

“emphasizing [defendant]’s mental health might have resulted in a longer

sentence”); Powell v. State, No. 01-11-01035-CR, 2013 WL 4507943, at *9 (Tex.

App.—Houston [1st Dist.] Aug. 22, 2013, no pet.) (mem. op., not designated for

publication) (recognizing that “evidence of a defendant’s mental illness can be

either a mitigating factor or an aggravating factor for the trial court to consider

when assessing punishment”); see also Bell v. State, 938 S.W.2d 35, 48 (Tex.


                                        17
Crim. App. 1996) (evidence of mental retardation “could have a mitigating or

aggravating effect”).

      Finally, Lewis complains about various aspects of trial counsel’s closing

argument at the sentencing hearing. But because the record is silent as to trial

counsel’s strategy, Lewis cannot show that trial counsel’s performance was

deficient. Moreover, the record reflects that trial counsel used closing argument to

highlight mitigating evidence contained in the PSI Report. Trial counsel

emphasized that Lewis was only a teenager at the time of the offense; that he may

have been under the influence of narcotics at the time of the offense; that he lacked

positive male guidance; and that he suffered from depression. And although the

State sought a sentence of 99 years due to the egregious nature of the offense, the

trial court imposed a more lenient sentence of 60 years.

      We conclude that the trial court could have reasonably determinized that

Lewis failed to establish that he was prejudiced by trial counsel’s failure to develop

mitigating evidence to present during the punishment phase of trial.

      We hold that the trial court did not abuse its discretion in denying Lewis’s

motion for new trial. Accordingly, we overrule Lewis’s second and third issues.




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                                   Conclusion

      We affirm the trial court’s judgment.




                                                Laura Carter Higley
                                                Justice

Panel consists of Chief Justice Radack and Justices Higley and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).




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