AFFIRMED; Opinion Filed March 5, 2019




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00750-CR

                             HENRY LEE FLETCHER, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 416th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 416--82292-2015

                             MEMORANDUM OPINION
                           Before Justices Myers, Osborne, and Nowell
                                    Opinion by Justice Nowell
       Following a bench trial, Henry Lee Fletcher was convicted of aggravated sexual assault of

an elderly or disabled person and sentenced to forty years’ incarceration. In two issues on appeal,

appellant argues the trial court erred by granting the State’s motion for continuance and overruling

his objection to the admission of a lab report into evidence. We affirm the trial court’s judgment.

                                     FACTUAL BACKGROUND

       The complainant, A.P., was fourteen years old with intellectual disabilities. On the evening

of June 27, 2015, A.P., who habitually left her home to walk in town alone, had been away from

home for a few hours. A.P. testified that she was walking when she got into appellant’s white car

and they went to his house. Once inside his bedroom, appellant removed all of his and her clothing.
While on his bed, appellant “touched [her] private part” with his “private part.”1 Afterward,

appellant drove A.P. to an area a “little ways” from her house and A.P. ran home because she was

scared. When she arrived home, she told her mom what happened, and her parents contacted the

police.

          Police arrived at A.P.’s home and separately spoke to A.P. and her parents. Investigator

Danny Stasik, a criminal investigator with the Collin County Sheriff’s Office who specializes in

crimes against children, took A.P. for a sexual assault exam. On the way to the hospital, A.P. told

the police she could show them the house where she was taken. She directed them to appellant’s

home and identified his white vehicle in the driveway.

          Dr. Matthew Cox performed a physical examination, including a SANE2 exam, on A.P. at

2:42 a.m. on June 28, 2015. During the examination, he found injuries consistent with vaginal

penetration. These types of injuries generally heal within two days, which meant the trauma to

A.P. was recent. After collecting swabs from A.P.’s mouth, vaginal canal, and anal canal, Cox

placed the swabs in a SANE box that he gave to Stasik.

          After A.P. identified appellant in a photo lineup, Stasik obtained an arrest warrant for

appellant and a search warrant for appellant’s house. Appellant agreed to talk to the police after

he was arrested. Initially he declared A.P. was never in his house, but subsequently admitted he

took A.P. to his house and A.P. was in his bedroom. Appellant also admitted he could tell A.P.

was disabled and guessed she was under the age of 18.

          Chelsea Wingate, a forensic scientist with the Texas Department of Public Safety,

performed the DNA analyses in this case. From the samples in the SANE kit, Wingate developed

DNA profiles and compared them to known samples from A.P. and appellant. She concluded



   1
       When asked to demonstrate which area of her body is her private part, A.P. pointed to her groin/crotch area.
   2
       Cox testified SANE stands for sex assault nurse examiner.

                                                                      –2–
appellant could not be excluded as a possible contributor to the DNA profiles. Wingate created a

report showing her conclusions, which was admitted into evidence.

       The trial court found appellant guilty of aggravated sexual assault of an elderly or disabled

person and not guilty of indecency with a child by sexual contact. This appeal followed.

                                          LAW & ANALYSIS

   A. Motion for Continuance

       In his first issue, appellant asserts the trial court abused its discretion under article 29.13 of

the Texas Code of Criminal Procedure and his constitutional rights by granting the State’s motion

for continuance after trial began. After the State read the indictment and appellant pleaded not

guilty to both counts charged, the parties raised several “pretrial motions” with the court.

Appellant filed a motion to suppress three days before trial (on the Friday preceding the Monday

trial) seeking to suppress the warrant for the seizure of appellant’s blood and saliva and the

laboratory results derived from any analysis performed on his blood and saliva, including the

results of DNA testing. The trial court granted the motion to suppress.

       When trial resumed the following day, the State informed the trial court it initially appealed

the court’s ruling on the motion to suppress. However, after realizing jeopardy attached the

previous day, the State withdrew its appeal. When the court asked whether both sides were ready

to proceed with trial, the State made an oral motion for continuance. Noting its intention the

motion to suppress be considered pretrial and representing the DNA evidence “is a very important

piece of evidence,” the State requested a continuance so it “may have the opportunity to try to

remedy the situation essentially by obtaining a new search warrant and trying to obtain the

evidence. That is the remedy that . . . would have been available to the State had we had the ability

to appeal.” Appellant stated he was prepared for trial and requested the court deny the motion

based on his right to a speedy trial and “his right of due process and due course of law.” Appellant

                                                 –3–
previously had not made a speedy-trial demand. The court took the motion under advisement.

The following day, the court granted a recess for twenty days. 3

           We review a trial court’s ruling on a motion for continuance for an abuse of discretion.

Briggs v. State, 560 S.W.3d 176, 184 (Tex. Crim. App. 2018). Abuse of discretion is a deferential

standard of review requiring appellate courts to view the evidence in the light most favorable to

the trial court’s ruling. Id. The trial court abuses its discretion only when no reasonable view of

the record could support its ruling. Id. “A trial court’s ruling will be upheld if it is correct on any

applicable legal theory, even if the trial court articulated an invalid basis.” Id.

           Appellant asserts the State did not meet its burden under article 29.13 of the code of

criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 29.13. After trial begins, the trial court

may grant a continuance when, by some unexpected occurrence that could not reasonably have

been anticipated, the applicant is so taken by surprise that a fair trial cannot be had. Id. The code

of criminal procedure requires all motions for continuance to be “sworn to by a person having

personal knowledge of the facts relied on for the continuance.” Id. art. 29.08. Article 29.13 does

not address or remove the requirement that a motion for continuance must be in writing. “A motion

for continuance not in writing and not sworn preserves nothing for review.” Dewberry v. State, 4

S.W.3d 735, 755 (Tex. Crim. App. 1999); Ricketts v. State, 89 S.W.3d 312, 317 (Tex. App.—Fort

Worth 2002, pets. ref’d); see also Anderson v. State, 301 S.W.3d 276, 278–81 (Tex. Crim. App.

2009) (concluding the court of appeals erred by applying a due-process exception to the motion-

for-continuance preservation requirement and concluding that the “right to present a defense is

subject to forfeiture.”).




     3
       The trial court stated it had not seen this type of request before. Likewise, when asked by a justice of this Court during appellate oral
argument whether the procedure for granting the motion to suppress and giving the State a “do over is unusual,” the State conceded it is unusual.

                                                                     –4–
       “[A] trial court also possesses discretion to grant an oral motion for continuance on

equitable grounds.” Garreans v. State, No. 05-06-00934-CR, 2008 WL 311002, at *4 (Tex.

App.—Dallas Feb. 5, 2008, no pet.) (mem. op., not designated for publication) (citing Williams v.

State, 172 S.W.3d 730, 733 (Tex. App.—Fort Worth 2005, pet. ref’d)); see also May v. State, No.

05-13-00438-CR, 2014 WL 4207149, at *3 (Tex. App.—Dallas Aug. 26, 2014, no pet.) (mem.

op., not designated for publication) (“a trial court also possesses discretion to grant an oral motion

for continuance on equitable grounds.”). “A motion for continuance, based on equitable grounds

rather than statutory grounds, is entirely within the discretion of the court, and will only call for

reversal if it is shown that the court clearly abused its discretion.” Garreans, 2008 WL 311002, at

*4 (quoting Williams, 172 S.W.3d at 733). An appellant must show he was actually prejudiced by

the trial court’s decision to grant the continuance. Id.

       Because the code of criminal procedure requires all motions for continuance made pursuant

to article 29 be in writing and the State’s motion was oral, we conclude the State’s motion was not

made pursuant to article 29.13. Therefore, we consider the trial court’s ruling on equitable

grounds. Appellant makes no argument that the trial court abused its discretion by granting the

motion on equitable grounds. Appellant filed the motion to suppress only three days before trial.

The parties and the trial court initially believed the motion was raised pre-trial, which would have

given the State the right to appeal the trial court’s decision under ordinary circumstances.

However, once the State realized and informed the trial court that jeopardy attached, the trial court

reached the decision to grant a short continuance to permit the State to seek another warrant. At

the time of the continuance, the case against appellant had been pending for eighteen months and

appellant was not incarcerated. The continuance was for twenty days.

       Additionally, appellant did not show how a twenty-day delay prejudiced him. On appeal,

appellant asserts he was “under tremendous anxiety and concern,” which is not supported by the

                                                 –5–
record, and “had to submit his body to search on two occasions.” Additionally, he argues a Texas

Department of Public Safety laboratory worker who was involved in the processing of biological

evidence in this case was no longer employed by DPS at the time of trial, and thus not available to

testify. This argument was not presented to the trial court and there is no evidence that, but for the

twenty-day delay, the DPS employee would have been available. Based on this record, we cannot

conclude the trial court clearly abused its discretion by granting the State’s equitable motion or

that appellant showed he suffered harm because of the continuance.

       In so far as appellant asserts the delay violated his right to speedy trial, appellant did not

create a record to support this complaint. To preserve a speedy-trial claim for appellate review, a

defendant must: (1) raise the claim before trial begins, (2) present evidence of the claim to the trial

court, and (3) obtain a ruling after presentation of evidence of the claim. Foster v. State, No. 13-

18-00051-CR, 2018 WL 6626728, at *3 (Tex. App.—Corpus Christi Dec. 19, 2018, no pet.) (mem.

op., not designated for publication) (citing TEX. R. APP. P. 33.1; Gonzales v. State, 435 S.W.3d

801, 805-08 (Tex. Crim. App. 2014); Henson v. State, 407 S.W.3d 764, 768-69 (Tex. Crim. App.

2013); Crocker v. State, 441 S.W.3d 309, 311 (Tex. App.—Houston [1st Dist.] 2013, no pet.);

Dean v. State, 995 S.W.2d 846, 850 (Tex. App.—Waco 1999, pet. ref’d)). There are four factors

we consider when addressing a speedy-trial claim: (1) the length of delay; (2) the State’s reason

for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) prejudice to the

defendant because of the length of delay. Balderas v. State, 517 S.W.3d 756, 767–68 (Tex. Crim.

App. 2016). These are known as the Barker factors. See Barker v. Wingo, 407 U.S. 514, 530

(1972). One of the reasons that a motion for speedy trial must be preserved at the trial court is to

allow the trial court to develop the record sufficiently for a Barker analysis. Henson, 407 S.W.3d

at 769. “At least two of the Barker factors (the reason for delay and the prejudice to the accused)

are fact-specific inquiries and may not be readily apparent from the trial record. A requirement

                                                 –6–
that the appellant assert his complaint at the trial level enables the court to hold a hearing and

develop this record so that the appellate courts may more accurately assess the claim.” Id.

       Appellant did not raise the speedy-trial claim before trial began; rather, he raised it after

trial started and jeopardy attached. Additionally, appellant did not present evidence of the Barker

factors supporting his speedy-trial claim to the trial court or otherwise develop a record to show

the delay was prejudicial to him. We conclude appellant did not preserve his speedy-trial claim

for appellate review.

       We overrule appellant’s first issue.

   B. Confrontation Clause

       In his second issue, appellant argues the trial court erred by overruling his objection to the

admission of State’s Exhibit 32, Wingate’s lab report, because it violated his rights under the

Confrontation Clause. Jordan Foglietta, a lab analyst who did not testify at trial, performed a

presumptive test to determine whether seminal fluid and sperm cells were present in the material

obtained from the SANE kit, “cut a portion of the sample,” and sent the cut portion of the sample

for DNA analysis. Wingate performed the DNA analysis based on the sample she received from

Foglietta. Wingate testified that if the sample had not contained seminal fluid or sperm cells or it

lacked sufficient material to create a DNA profile, she would have identified those problems.

Wingate testified:

       So what [Foglietta’s] results tell us is how we’re going to actually process the
       samples. Since semen was detected, we know that we now need to perform a
       different type of extraction because semen has been detected. My conclusions were
       based solely on the DNA results and not on the screening results.

Wingate was the sole author of the report admitted as State’s Exhibit 32. After the trial court

overruled appellant’s objections, Wingate testified without objection about the contents of her

report, including her conclusion that appellant could not be excluded as a possible contributor to

the male profile on the vaginal and anal swabs.
                                                –7–
       Under the Confrontation Clause of the Sixth Amendment to the United States Constitution,

“in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.” U.S. CONST. amend. VI. The Supreme Court interpreted this right to

mean that “testimonial” evidence is inadmissible at trial unless the witness who made the

testimonial statement either takes the stand to be cross-examined or is unavailable and the

defendant had a prior opportunity to cross-examine him. Crawford v. Washington, 541 U.S. 36,

53–54 (2004); Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim. App. 2013). The Supreme Court

has not precisely defined what constitutes a “testimonial” statement under Crawford. See 541 U.S.

at 51 (describing “[v]arious formulations of this core class of ‘testimonial’ statements”). The Court

has held that an analyst’s certification prepared in connection with a criminal investigation or

prosecution, including blood-alcohol concentration reports and reports listing the composition,

quality, and weight of the narcotics at issue, are testimonial and cannot be admitted without

satisfying the requirements of the Confrontation Clause. See Bullcoming v. New Mexico, 564 U.S.

647, 659–61 (2011); Melendez–Diaz v. Massachusetts, 557 U.S. 305, 311 (2009). However, the

Texas Court of Criminal Appeals held DNA profiles are non-testimonial. Paredes v. State, 462

S.W.3d 510, 519 (Tex. Crim. App. 2015).

       The court of criminal appeals determined the admission of a lab report created solely by a

non-testifying analyst, without calling that analyst to sponsor it, violates the Confrontation Clause.

Id. at 517. “While the testifying expert can rely upon information from a non-testifying analyst,

the testifying expert cannot act as a surrogate to introduce that information.” Id. However, when

an analyst “perform[s] the crucial analysis determining the DNA match and testifie[s] to her own

conclusions,” the testimony does not violate the Confrontation Clause. Id. at 518. “[W]hen the

underlying lab analysis is not referred to or admitted into evidence, a testifying expert who

independently analyzes raw DNA data may offer his own opinion concerning the comparison of

                                                 –8–
the DNA profiles; if subject to cross-examination, then the admission of that opinion does not

violate the Confrontation Clause.” Dugar v. State, No. 01-16-00908-CR, 2018 WL 2106893, at

*6 (Tex. App.—Houston [1st Dist.] May 8, 2018, pet. ref’d) (citing Garrett v. State, 518 S.W.3d

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

       Appellant asserts Foglietta made “statements regarding the presence of seminal fluid and

semen on the samples” and those statements were testimonial. If we accept for purposes of this

appeal that Foglietta’s actions were statements subject to a Confrontation Clause analysis, we

conclude no testimonial evidence from Foglietta was admitted at trial. The record establishes

Wingate performed the crucial analysis determining the DNA match and her report includes only

her own conclusions based on work she performed. The report does not include any conclusions

Foglietta may have reached. It is Wingate’s conclusions based on her own independent analysis

that linked appellant to A.P.’s assault, not Foglietta’s. Wingate was not merely a testifying expert

acting as a surrogate to introduce a non-testifying analyst’s report.            Because Wingate

independently analyzed the raw DNA data submitted by Foglietta and her report offered only her

own opinions concerning the DNA profile and she testified and was subject to cross-examination,

the admission of her report does not violate the Confrontation Clause. We overrule appellant’s

second issue.

                                           CONCLUSION

       We affirm the trial court’s judgment.




                                                   /Erin A. Nowell/
                                                   ERIN A. NOWELL
Do Not Publish                                     JUSTICE
TEX. R. APP. P. 47.2(b)
170750F.U05

                                                –9–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 HENRY LEE FLETCHER, Appellant                         On Appeal from the 416th Judicial District
                                                       Court, Collin County, Texas
 No. 05-17-00750-CR         V.                         Trial Court Cause No. 416--82292-2015.
                                                       Opinion delivered by Justice Nowell.
 THE STATE OF TEXAS, Appellee                          Justices Myers and Osborne participating.

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


Judgment entered this 5th day of March, 2019.




                                                –10–
