Opinion issued August 29, 2019




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-18-00317-CR
                            ———————————
                    WILBER ULISES MOLINA, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 338th District Court
                            Harris County, Texas
                        Trial Court Case No. 1433542


                             DISSENTING OPINION

      A jury found appellant, Wilber Ulises Molina, guilty of the felony offense of

aggravated sexual assault1 and assessed his punishment at confinement for fifty-five

years. In his first and second issues, appellant contends that the evidence is legally

1
      See TEX. PENAL CODE ANN. § 22.021.
insufficient to support the appellant’s conviction and the trial court erred in admitting

certain testimony in violation of his constitutional right to confrontation.2

      At trial, over appellant’s objection, the trial court allowed a deoxyribonucleic

acid (“DNA”) analyst to testify based on DNA testing performed by others at an

independent, out-of-state laboratory with which the analyst had no affiliation. In

doing so, the trial court erroneously allowed DNA evidence to be admitted through

a surrogate witness in violation of appellant’s constitutional right to confrontation.

The erroneously admitted DNA evidence was the only evidence admitted into the

record linking appellant to the aggravated sexual assault of the complainant.

Accordingly, I would hold that the evidence is legally insufficient to support

appellant’s conviction. Because the majority opinion holds that the trial court did

not err in admitting the testimony of the DNA analyst in violation of the appellant’s

right to confrontation and that there is legally sufficient evidence to support

appellant’s conviction, I respectfully dissent.

                                      Background

      In 2003, the complainant was abducted by four men and sexually assaulted by

at least three men at gunpoint.        During those assaults, the complainant was



2
      See U.S. CONST. AMEND. VI; TEX. CONST. art. 1, §10. In his third issue, appellant
      contends that the trial court erred in overruling his objection to certain portions of
      the state’s closing argument. Due to my disposition of appellant’s first and second
      issues, it is not necessary to address his third issue. See TEX. R. CIV. P. 47.1.
                                            2
blindfolded and, therefore, unable to identify the men who abducted, sexually

assaulted, and then abandoned her in a soccer field late at night. There were no other

witnesses to the sexual assaults.      As part of the law enforcement officers’

investigation, a vaginal swab was taken from the complainant along with two

“cuttings” from her underwear, believed to contain semen from some or all of her

assaulters. This evidence was sent to ReliaGene Technologies, Inc. (“ReliaGene”),

an independent laboratory outside of New Orleans, for processing of DNA evidence

and a report.

      Before trial, appellant moved to exclude the DNA evidence processed by

ReliaGene, including a “Forensic Test Results” report from ReliaGene as well as

any testimony by Lloyd Halsell III, a DNA analyst who did not perform the DNA

testing for ReliaGene. Appellant asserted that use of the report and other evidence

concerning the DNA testing performed by ReliaGene would violate his Sixth

Amendment right to confrontation. The trial court held an evidentiary hearing on

appellant’s motion.

      At the hearing, Halsell, an operations coordinator for the Houston Forensic

Science Center (“HFSC”), who is trained in DNA analysis, testified that in 2003,

when the complainant was sexually assaulted, the former Houston Police

Department Crime Lab (“HPD Crime Lab”) was not processing DNA evidence due

to quality-assurance issues.      Thus, the DNA evidence collected after the


                                          3
complainant’s 2003 sexual assaults was outsourced for processing to ReliaGene.

After processing the kit, ReliaGene issued a “Forensic Test Results” report that it

sent back to the former HPD Crime Lab.

         Halsell further testified that, in 2017, HFSC received a DNA sample, also

called “a reference,” for appellant that it processed “in-house to generate a DNA

profile” for appellant that could be compared to “the work that was done by

Relia[G]ene.” Notably, neither Halsell nor anyone else at HFSC tested the DNA

evidence collected in 2003 following the aggravated sexual assault of the

complainant. Instead, Halsell relied on unknown analysts at ReliaGene in ultimately

concluding that appellant’s 2017 DNA sample or “reference” matched the DNA

evidence processed independently by ReliaGene in 2003. Halsell also explained that

the “Forensic Test Results” report contained the “same data” as Halsell’s own 2017

laboratory report, which states at the top: “previous analysis, Relia[G]ene

Technology Laboratory.” And although Halsell stated that he believed that his

report was “independent from” the Relia[G]ene report, he specifically noted that his

report was “based on the data that was used to generate” the ReliaGene “Forensic

Test Results” report.

      Regarding ReliaGene’s procedures and protocols, Halsell testified that he

“was not involved with the . . . physical processing of the [DNA] evidence” sent to

ReliaGene in this case, he “never worked for Relia[G]ene,” and he was “never a part


                                         4
of the [DNA] testing of th[e] materials” at ReliaGene or otherwise. He further

testified that his laboratory report was based on the data, DNA profile, and “Forensic

Test Results” report generated independently by ReliaGene, although he had no

knowledge of ReliaGene’s standards and protocols, or how ReliaGene’s DNA

testing was actually performed, and he did not supervise anyone at ReliaGene who

performed the DNA testing related to the complainant’s 2003 aggravated sexual

assault. Yet, when asked whether he could tell the trial court how ReliaGene’s data

was generated, Halsell responded:

      [W]ell, as I said, my review would have been a review of their case file.
      So, their extraction paperwork, their amplification paperwork, all of
      their controls, I was able to say that the data they obtained was reliable
      and sufficient that we can rely on it and use that data.

      At the conclusion of the evidentiary hearing, the trial court excluded

ReliaGene’s “Forensic Test Results” report but it allowed Halsell to testify about all

of the DNA evidence, including data and analysis from the excluded ReliaGene

“Forensic Test Results” report. No witness from ReliaGene testified as to the DNA

testing it performed in this case.

      At trial, no witness from ReliaGene testified as to the processing or testing of

the DNA evidence in this case. Instead, the State, through Halsell’s testimony,

introduced evidence about ReliaGene’s DNA processing and testing about which

Halsell previously admitted that he had no personal knowledge. For example,



                                          5
Halsell testified regarding ReliaGene’s process for testing the DNA evidence in this

case as follows:

      So, the process there is they would—I don’t know exactly how they
      were instructed, in terms of what items to look at. But they would have
      examined those items to then go through that process of what I was
      talking about to initially screen it and then go through those extractions
      and all of those steps to generate a DNA profile.

Halsell also testified that ReliaGene “worked the cases” that it received due to the

issues with the former HPD Crime Lab “together” and “in batches.” The HFSC

would then “review[] the data off of the CDs” it received from ReliaGene. In other

words, ReliaGene would have sent HFSC a “batch” of different DNA profiles from

multiple different people related to different cases. And in regard to the DNA

evidence in the instant case, when Halsell testified about the “chain of custody,” he

noted that the actual DNA evidence collected from the complainant would have been

sent back to the former HPD Crime Lab from ReliaGene in a box that had two

different cases with two different numbers. And when asked about the “sticky” note

on the box that referenced other case numbers, Halsell responded that he did not

“know what that note is referring to, whether it’s referring to the evidence, [or]

whether it’s referring to reports. I have no knowledge of that note and really have

not seen that before [that day at trial].”

      Halsell further testified that despite “whatever happened with [the ReliaGene]

lab in New Orleans in 2004,” such as ‘whether there was an error or not an error,


                                             6
there was a DNA profile that was generated.” However, he did not know “exactly

how [ReliaGene DNA analysts] were instructed, in terms of what to look at,” and he

had “no personal knowledge . . . of th[e] process that was done” at ReliaGene. And

Halsell confirmed that he had never worked at ReliaGene, he did not supervise

anyone there, he did not see “any of the machines” there or “know [ReliaGene’s]

protocols and the[] steps that” were taken with respect to the processing and testing

of the DNA evidence in the instant case.

      Notably, despite Halsell’s unfamiliarity with ReliaGene, its processes,

procedures, protocols, personnel and chain-of-custody precautions, he based his

report and testimony linking appellant to the 2003 aggravated sexual assault of the

complainant on “the data that was generated by [ReliaGene’s] laboratory,” along

with ReliaGene’s “case file and all of their worksheets” and “computer data.”

Halsell confirmed that, assuming there was sufficient DNA evidence remaining after

ReliaGene’s testing, he could have re-tested the evidence himself—the screening,

extraction and analysis—but he did not do so. Instead, he testified that based on the

underwear “cuttings” that were independently processed by ReliaGene, “Wilber

Molina was not excluded as a possible contributor to the DNA” found on the garmet.

He further concluded that, from “the profile that [ReliaGene created and Halsell]

observed on the evidence, that if [he] were to look randomly at the




                                           7
population . . . [he] would expect that [he] would have to look at 3.9 quadrillion

profiles to see that [same DNA] profile again.”

                               Confrontation Clause

      In his first issue, appellant argues that the trial court erred in admitting the

testimony of Halsell based on DNA testing performed by others at an independent

out-of-state laboratory with which Halsell had no affiliation because, by doing so,

the trial court violated his right to confrontation. See U.S. CONST. Amend. VI; TEX.

CONST. art. 1, § 10.

      We review a trial court’s decision to admit evidence for an abuse of discretion.

See Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006). A trial court

abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any

guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.

App. 1990). When considering a trial court’s decision to admit evidence, we will

not reverse the trial court’s ruling unless it falls outside the “zone of reasonable

disagreement.” Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996) (internal

quotations omitted).

      A criminal defendant in the State of Texas has the right to be confronted with

the witnesses against him.        See U.S. CONST. amend. VI (“In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.”); TEX. CONST. art I, § 10 (“In all criminal prosecutions the


                                          8
accused shall be . . . . confronted by the witnesses against him[.]”).            The

Confrontation Clause provides two types of protections for a criminal defendant: the

right physically to face those who testify against him and the right to conduct

cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987); see also

Crawford v. Washington, 541 U.S. 36, 42 (2004); Coy v. Iowa, 487 U.S. 1012, 1016

(1988) (Confrontation Clause “guarantees [a] defendant a face-to-face meeting with

witnesses appearing before the trier of fact”).      And it bars admission of the

testimonial statements of a witness who does not appear at trial unless the witness is

unavailable to testify and the defendant has had a prior opportunity for

cross-examination.     See Davis v. Washington, 547 U.S. 813, 821 (2006)

(citing Crawford, 541 U.S. at 53–54, (2004)). Whether a statement is testimonial or

nontestimonial is a question of law that we review de novo. Wall v. State, 184

S.W.3d 730, 742 (Tex. Crim. App. 2006).

      The United States Supreme Court has declined to provide a “comprehensive

definition” of the term “testimonial.” Crawford, 541 U.S. at 68. However, in

Crawford, the landmark confrontation clause case, it explained that the confrontation

clause applied “at a minimum to prior testimony at a preliminary hearing, before a

grand jury, or at a former trial; and to police interrogations.” Id. The Court further

defined a core class of testimonial statements to include: (1) ex parte in-court

testimony, (2) affidavits, (3) depositions, (4) confessions, (5) custodial


                                          9
examinations, and (6) statements made under circumstances that would lead an

objective witness reasonably to believe that the statement would be available for use

at a later trial.” Id. at 51–52.

       Subsequent cases from the United States Supreme Court have continued to

explore what types of statements are considered “testimonial” in nature.                In

Melendez-Diaz v. Massachusetts, the Supreme Court made clear that Crawford’s

rule reaches forensic evidence, which is not “uniquely immune from the risk of

manipulation.” 557 U.S. 305, 318 (2009). There, the Court held that admitting

certain notarized “certificates of analysis” showing the result of forensic testing and

stating that the substances seized from the criminal defendant contained cocaine,

without requiring any testimony from the analysts who performed the testing,

violated the defendant’s right to confrontation. See id. at 309–311. As the Court

explained, “certificates of analysis” had a clear evidentiary purpose, were made

under circumstances which would lead an objective witness reasonably to believe

that the “certificates of analysis” would be available for use at a later trial, and, thus,

they “f[ell] within the Clause’s ‘core class of testimonial statements.’” Id. at 310–

311 (quoting Crawford, 541 U.S. at 51–52). Further, the Court rejected the argument

that the Confrontation Clause should not apply to bar the admission of the

“certificates of analysis” because the “statements” in the certificates resulted from

“neutral scientific testing,” making them presumptively reliable.             Id. at 318.


                                            10
According to the Court, the Confrontation Clause requires reliability to be assessed

in a “particular manner,” namely, through “testing in the crucible of

cross-examination.” Id. at 317 (quoting Crawford, 541 U.S. at 61).

      Then, in Bullcoming v. New Mexico, the Supreme Court held that a forensic

laboratory report was also testimonial and that the testimony explaining the report

from a witness who did not personally perform the forensic testing detailed in the

report violated the criminal defendant’s right to confrontation. 564 U.S. 647, 652

(2011). In that case, the state, at trial, introduced the results of the criminal

defendant’s blood alcohol testing through an analyst who was familiar with the

testing laboratory’s procedures, but who had not participated in and had not observed

the forensic testing of the defendant’s blood sample. Id. at 651. On appeal, the

question presented to the Court was “whether the Confrontation Clause permitt[ed]

the [state] to introduce a forensic laboratory report containing a testimonial

certification—made for the purpose of proving a particular fact—through the

in-court testimony of a scientist who did not sign the certification or perform or

observe the test reported in the certification.” Id. at 652. Significantly, the Court

determined that the State’s resort to the use of a “surrogate” witness, in place of the

analyst who created the forensic laboratory report, did not satisfy the Confrontation

Clause. Id. And, the criminal defendant had a “right . . . to be confronted with the

analyst who [completed the testing], unless that analyst [was] unavailable at trial,


                                          11
and the [defendant] had an opportunity, pretrial, to cross-examine that particular

scientist.” Id.

        Most recently, in Williams v. Illinois, the Supreme Court issued a plurality

opinion, regarding certain testimony concerning DNA evidence in circumstances

similar to the ones present in this case. See 567 U.S. 50, 55–141 (2012). At the very

least, the Court’s struggle to resolve the same issue we face in this case confirms the

seriousness of the matters at stake.

      In Williams, the complainant “was abducted while she was walking home

from work.” Id. at 59. The perpetrator then sexually assaulted her, robbed her, and

left her “in[] the street.” Id. At the hospital, doctors “took a blood sample and

vaginal swabs.” Id. In linking the criminal defendant to the sexual assault of the

complainant, the State relied on a “DNA profile produced by an outside laboratory.”

Id. at 56. Specifically, the State called a witness to testify about the DNA generated

by another laboratory at which the witness did not work or ever “set foot” inside. Id.

at 56, 60–62; see also id. at 125 (Kagan, J., dissenting). The witness also revealed

that she did not conduct or observe any of the forensic testing that created the DNA

profile, which she then “matched” to the criminal defendant. Id. at 62.

      Significantly, four of the Justices dissented in Williams, concluding that the

testimony at issue constituted “surrogate testimony” like the testimony of the witness

who did not actually perform the forensic testing in Bullcoming, and should have


                                          12
been excluded for a violation of the criminal defendant’s right to confrontation. See

id. at 118–141 (Kagan, J., dissenting). Writing for the dissent, Justice Kagan

explained the dangers of allowing evidence of a forensic laboratory report to come

in through a “surrogate witness” because the witness “could not convey what [the

actual analyst who completed the testing of the DNA evidence] knew or observed

about the events . . . , i.e., the particular test and testing process he employed,” “[n]or

could such surrogate testimony expose any lapses or lies” on the forensic testing

analyst’s part.   Id. at 124 (Kagan, J., dissenting) (first and second alterations in

original) (emphasis omitted). “Like the lawyers in Melendez-Diaz and Bullcoming,

Williams’s attorney could not ask questions about that analyst’s proficiency, the care

he took in performing his work, and his veracity.” Id. at 123 (Kagan, J., dissenting)

(internal quotations omitted). Importantly, “[h]e could not probe whether the analyst

had tested the wrong vial, inverted the labels on the samples, committed some more

technical error, or simply made up the results.” Id. at 125 (Kagan, J., dissenting).

The dissenting Justices noted that “[a]t least the surrogate witness in Bullcoming

worked at the relevant laboratory and was familiar with its procedures,” which was

not true for the surrogate witness in Williams. Id. (Kagan, J., dissenting).

      Significantly, the dissent reiterated, as the Supreme Court had emphasized in

Melendez-Diaz, that “in response to claims of the über alles reliability of scientific

evidence: [i]t is not up to [the court] to decide, ex ante, what evidence is trustworthy


                                            13
and what is not” because “the Confrontation Clause prescribes its own ‘procedure

for determining the reliability of testimony in criminal trials,’” namely,

“cross-examination.” Id. at 138 (quoting Crawford, 541 U.S. at 67). Dispensing

with cross-examination “because testimony is obviously reliable is akin to

dispensing with jury trial because a [criminal] defendant is obviously guilty.” Id.

(quoting Crawford, 541 U.S. at 67). This should not be a stance supported by the

Court.

         The United States Supreme Court is not the only court to address a criminal

defendant’s right to confrontation in circumstances similar to the instant case. Most

notably, in Burch v. State, the Texas Court of Criminal Appeals, relying on the

Supreme Court’s analysis in Bullcoming, disapproved of the admission of a

laboratory report without the criminal defendant being able to cross-examine the

analyst who tested a substance contained in a ziplock bag found on the defendant.

401 S.W. 3d 634, 640 (Tex. Crim. App. App. 2013). Instead, the State offered as its

witness an analyst who did not do any “testing,” but simply “review[ed]” the work

done. Id. at 635–36. On appeal, the Dallas Court of Appeals held that the trial court

erred in admitting the laboratory report and the “reviewer” analyst’s testimony that

the substance found on the criminal defendant was cocaine. Id. And the Texas Court

of Criminal Appeals agreed, noting that although “the testifying witness[, the

reviewing analyst,] was a supervisor who ‘reviewed’ the original process, [the Court


                                          14
could not] say, on th[e] record, that [the witness] had personal knowledge that the

tests were done correctly or that the tester did not fabricate the results.” Id. at 637.

Accordingly, it was error to admit the laboratory report, which contained testimonial

statements, and the reviewing analyst’s testimony about the results of testing that

she did not complete and who could not verify the authenticity of the statements. Id.

Stated differently, the Court held that the admission of the laboratory report and the

reviewing analyst’s testimony violated the criminal defendant’s right to

confrontation. Id. at 637–38 (“Without having the testimony of the analyst who

actually performed the tests, or at least one who observed their execution, the

defendant has no way to explore the types of corruption and missteps the

Confrontation Clause was designed to protect against.”). As the Court explained,

the “State cannot sidestep the Sixth Amendment” by creative wordsmithing. Id. at

639.

       In an about-face two years later, the Court in Paredes v. State, when faced

with the same Confrontation Clause dilemma as in Burch, determined that the

criminal defendant’s right to confrontation was not violated. See 462 S.W. 3d 510,

519 (Tex. Crim. App. 2015). Inexplicably, the Court distinguished Paredes from

Burch, on the basis that the State, in Burch, “called the testing analyst’s supervisor

who signed the lab report but had not performed or observed any testing.” Id. at

518.   In other words, the laboratory reports admitted into evidence in Burch


                                          15
contained testimonial statements that were admitted “through the expert testimony

of a [surrogate witness] who did not make th[e] statements and could not verify the

authenticity of th[e] statements.” Id. In contrast, according to the Court, in Paredes,

the testifying witness was a supervisor in the laboratory where the forensic testing

took place, she “performed the crucial analysis determining the DNA match,” she

“testified to her own conclusions,” she “testified about the safety measures in place”

at the lab to detect errors and the laboratory reports she relied on to reach her

conclusions “were not offered into evidence.” Id. at 512, 518. Further, because the

witness relied on “non-testimonial information—computer-generated DNA data—

to form [her] independent, testimonial opinion and [the defendant] was given the

opportunity to cross-examine her about her analysis,” the Court held that the

testifying witness in Paredes was “more than a surrogate for a non-testifying

analyst’s report.” Id. at 518–19.

      Here, the majority opinion errs in relying on Paredes and in extending its

holding to apply to the facts of this case. In Paredes, the Court could not have

reached its conclusion but for the other factors weighing in favor of the testifying

witness’s reliability.   As the Court clearly explained, “more importantly, [the

witness] testified about the safety measures in place at [the laboratory] to

detect . . . errors and stated that, if part of the analysis were done improperly, the




                                          16
laboratory procedure would not generate an incorrect DNA profile.”3 Id. In other

words, the testifying witness in Paredes had a distinct level of first-hand knowledge

due to working in the same laboratory as the other analysts who participated in

generating the inculpatory DNA profile. And she was testifying as “more than a

surrogate” because she actually performed “the crucial analysis” and merely relied

on another analyst’s “computer-generated data in reaching her conclusion rather than

another analyst’s report.” Id. (emphasis added) (explaining “not a case in which the

State attempted to bring in a testimonial lab report through a surrogate [witness]”);

see also Garret v. State, 518 S.W. 3d 546, 554–55 (Tex. App.—Houston [1st Dist.]

2017) (testifying analyst performed analysis and comparison of criminal defendant’s

DNA profile and DNA profile obtained from scene; all testing and analysis took

place at HFSC laboratory; testifying analyst testified about work completed by other

analysts in laboratory where he also worked but also that he performed actual

analysis and interpretation leading to his laboratory report confirming results).

      Not so here.       In our case, Halsell had no personal knowledge about

ReliaGene’s analysts or their processes and procedures, although he was allowed to

testify as if he did. And, contrary to the testifying witness in Paredes, it is undisputed

that Halsell did not just rely on raw computer-generated data from ReliaGene in


3
      Instead, the forensic DNA testing would have “yield[ed] no result at all[,] rather
      than an improper result.” Paredes v. State, 462 S.W.3d 510, 518 (Tex. Crim. App.
      2015).
                                           17
order to reach his conclusion which linked appellant to the complainant’s 2003

aggravated sexual assault in this case. Instead, he testified unequivocally that he

relied on “[n]ot      only . . . [ReliaGene’s   “Forensic Test Results”] report,

but . . . also . . . the data that was generated by [ReliaGene’s] laboratory.” Halsell

explained that he took ReliaGene’s “case file,” “worksheets,” and “computer data”

to perform his analysis.     And the unknown analyst at ReliaGene “extracted,

quantified, amplified, did all these steps in the process in order to create a DNA

profile” that Halsell then “used as part of [his] analysis.” Halsell’s conclusions are

dependent on more than just ReliaGene’s “computer-generated data.”                   His

conclusions are dependent on a non-testifying analyst’s report and testimonial

statements.

       The majority opinion seizes on the language in Paredes,4 that

“computer[-]generated DNA data is not testimonial” and “is not subject to the

Confrontation Clause’s cross-examination requirement” to justify its holding. See

Paredes, 462 S.W.3d at 518–19. In doing so, the majority opinion ignores a

significant portion of the Court of Criminal Appeals’ reasoning in Paredes, namely

that the testifying witness “did not introduce or testify regarding a formal report or


4
      The same language is found in our previous opinion in Garrett v. State, 518 S.W.3d
      546, 555 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (“The raw DNA profiles
      ‘are not the functional equivalent of live, in-court testimony because they did not
      come from a witness capable of being cross-examined. They com from a
      computer.’” (quoting Paredes, 462 S.W.3d at 518)).
                                          18
assertion from a non-testifying analyst.” Id. at 519. Accordingly, the majority

opinion is incorrect in stating that the DNA evidence at issue in this instant case is

merely “computer-generated data on which Halsell relied for his opinion” and, thus,

not testimonial and does not violate appellant’s right to confrontation.          This

conclusion is completely contrary to Halsell’s own testimony that, in reaching his

opinion, he relied on the analysis and “Forensic Test Results” report issued by

ReliaGene and about which he had no knowledge.

      Scarier yet, Halsell’s testimony in this case lacks any assurances of reliability

that existed in Paredes.       For instance, we do not know how that “raw

computer-generated data” the majority opinion finds so compelling was obtained

because there was no one available for appellant to cross-examine or confront.5 And

when the State introduced the substance of ReliaGene’s “Forensic Test Results”

report into evidence through Halsell’s testimony, the analyst who actually tested the




5
      This problem is apparent due to the jury’s confusion surrounding Halsell’s
      testimony. During deliberations, the jury requested “the documentation of the
      evidence of the DNA.” The jurors’s disagreement over the “DNA numbers” led
      them to request “the testimony of the DNA expert on the analysis of the DNA.”

                                          19
DNA evidence and generated that report became a witness, just like Halsell.6

Accordingly, appellant had the right to confront that ReliaGene analyst, too.7

      To be sure, the record in this case—Halsell’s own testimony—contradicts the

majority opinion’s skewed depiction of this case. Here, we are faced with the same



6
      There is no basis for admitting Halsell’s testimony concerning ReliaGene’s
      “Forensic Test Results” report and analysis on a basis other than for the truth of the
      matter asserted. As summarized in Justice Kagan’s dissent in Williams v. Illinois:
             The plurality’s primary argument to the contrary tries to exploit a limit
             to the Confrontation Clause recognized in Crawford. “The Clause,”
             we cautioned there, “does not bar the use of testimonial statements for
             purposes other than establishing the truth of the matter asserted.” The
             Illinois Supreme Court relied on that statement in concluding that [the
             surrogate witness’s] testimony was permissible. On that Court’s
             view, “[the surrogate witness] disclosed the underlying facts from [the
             outside laboratory’s] report” not for their truth, but “for the limited
             purpose of explaining the basis for her [expert] opinion,” so that the
             factfinder could assess that opinion’s value. The plurality wraps itself
             in that holding, similarly asserting that [the surrogate witness’s]
             recitation of [the outside laboratory’s] findings, when viewed through
             the prism of state evidence law, was not introduced to establish “the
             truth of any . . . matter concerning [the outside laboratory’s]” report.
             But five Justices agree, in two opinions reciting the same reasons, that
             this argument has no merit: [the surrogate witness’s] statements about
             [the outside laboratory’s] report went to its truth, and the State could
             not rely on her status as an expert to circumvent the Confrontation
             Clause’s requirements.
      567 U.S. at 125–26 (Kagan, J., dissenting) (internal citations omitted).
7
      As if that weren’t enough, at the time the DNA evidence was outsourced to
      ReliaGene in 2003, the former HPD Crime Lab had been shut down for failure to
      meet quality standards. Halsell testified about the doubt surrounding the quality of
      work being generated at the HPD Crime Lab and the questions about the integrity
      of storage of evidence there. Why, under these circumstances, would the State, in
      a cold case based solely on DNA evidence, be allowed to use a “surrogate witness”
      for the most critical evidence linking appellant to the sexual assault of the
      complainant? Cold Case, BLACK’S LAW DICTIONARY (11th ed. 2019).
                                            20
circumstances as in Bullcoming and Burch. Halsell is not “more than a surrogate,”

he is actually a surrogate for a non-testifying analyst’s testimonial statements and

forensic report and the majority errs in holding otherwise. See Bullcoming, 564 U.S.

at 661–65 (“[T]his violated the Confrontation Clause because the testing analyst’s

laboratory report was testimonial and it could not be admitted into evidence through

the ‘surrogate testimony’ of another analyst.” (internal citations omitted)); Burch,

401 S.W.3d at 640 (“Although the State did call the reviewing analyst at trial, that

witness did not have personal knowledge of the testimonial facts being submitted.

Consequently,    she    was    not   an        appropriate   surrogate   witness   for

cross-examination.”). Further, the fact that the trial court excluded ReliaGene’s

“Forensic Test Results” report is immaterial because Halsell made it clear that his

testimony and his own report and conclusions were reliant upon ReliaGene’s

independently generated work product—not merely raw computer-generated data.

Halsell did not limit his testimony to confirming that the two DNA profiles matched

each other. Rather, Halsell testified that ReliaGene took certain steps and used

certain processes to generate a DNA profile from the DNA evidence provided to it.

He certified that the analysis performed by an unknown ReliaGene analyst was

accurate despite his admitted lack of personal knowledge of ReliaGene’s procedures

and processes.




                                          21
      “Scientific testing is ‘technical,’ to be sure . . . , but it is only as reliable as the

people who perform it.” Williams, 567 U.S. at 137 (Kagan, J., dissenting). “That is

why a defendant may wish to ask the analyst a variety of questions: How much

experience do you have? Have you ever made mistakes in the past? Did you test

the right sample? Use the right Procedures? Contaminate the sample in any way?”

Id. (Kagan, J., dissenting).

      As the Supreme Court has frequently said, the criminal defendant’s right to

confrontation “[i]s a fundamental right essential to a fair trial.” Pointer v. Texas,

380 U.S. 400, 404 (1965). And courts must be willing to act zealously to protect the

right from erosion. Greene v. McElroy, 360 U.S. 474, 496–97 (1959); see also

Barber v. Page, 390 U.S. 719, 725 (1968) (“The right of confrontation may not be

dispensed with so lightly.”).        When the right to confrontation is denied or

significantly diminished, “the ultimate integrity of the fact-finding process” is called

into question.    Chambers v. Mississippi, 410 U.S. 284, 295 (1973) (internal

quotations omitted); see also Pointer, 380 U.S. at 404 (right of confrontation

necessary to “expos[e] falsehoods and bring[] out the truth in the trial of a criminal

case”).

      For these reasons, I would hold that the trial court erred in admitting the

testimony of Halsell regarding the DNA evidence in this case because, by doing so,

the trial court violated appellant’s right to confrontation. I would further hold that


                                             22
the erroneous admission of Halsell’s testimony harmed appellant. See TEX. R. APP.

P. 44.2(a). And I would sustain appellant’s first issue.

                            Sufficiency of the Evidence

      In his second issue, appellant argues that the evidence was legally insufficient

to support his conviction because there is “a complete lack of evidence, other than

the improperly admitted testimony of . . . Halsell . . . to connect [a]ppellant to

the . . . [aggravated] sexual assault of [the complainant].”

      We review the legal sufficiency of the evidence by considering all the

evidence in the light most favorable to the jury’s verdict to determine whether any

“rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due process

safeguard, ensuring only the rationality of the trier of fact’s finding of the essential

elements of the offense beyond a reasonable doubt. See Moreno v. State, 755

S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference to the responsibility

of the fact finder to fairly resolve conflicts in testimony, weigh evidence, and draw

reasonable inferences from the facts. Williams, 235 S.W.3d at 750. However, our

duty requires us to “ensure that the evidence presented actually supports a conclusion

that the defendant committed” the criminal offense of which he is accused. Id.




                                          23
      A person commits the offense of aggravated sexual assault if he intentionally

or knowingly causes the sexual organ of another person, without that person’s

consent, to contact the sexual organ of another person, including him, and he uses or

exhibits a deadly weapon in the course of the same criminal episode. TEX. PENAL

CODE ANN. § 22.021(a)(1)(A)(iii), (a)(2)(A)(iv). In this case, the only evidence

presented at trial linking appellant to the aggravated sexual assault of the

complainant was the erroneously admitted testimony of Halsell at trial. Without the

DNA evidence from Halsell indicating that appellant could not be excluded as a

DNA contributor in this case, the jury would only have heard the testimony of the

complainant and two other witnesses—none of whom were able to identify appellant

as the perpetrator of the aggravated sexual assault. Cf. Jensen v. State, 66 S.W.3d

528, 534 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (holding complainant’s

testimony defendant was person who sexually assaulted her sufficient to support

conviction).

      Thus, viewing the evidence in the light most favorable to the jury verdict, a

rational juror could not conclude, beyond a reasonable doubt, that appellant

committed the offense of aggravated sexual assault. See TEX. PENAL CODE ANN.

§ 22.021(a)(1)(A)(iii), (a)(2)(A)(iv); Jackson, 443 U.S. at 318–19; Williams, 235

S.W.3d at 750. And I would hold that there is legally insufficient evidence to support

appellant’s conviction and sustain appellant’s second issue.


                                         24
      Accordingly, I would reverse the judgment of the trial court and render a

judgment of acquittal. See Verduzco v. State, 24 S.W.3d 384, 386 (Tex. App.—

Houston [1st Dist.] 2000, no pet.). Because the majority opinion does not, I

respectfully dissent.




                                            Julie Countiss
                                            Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

Countiss, J., dissenting.

Publish. TEX. R. APP. P. 47.2(b).




                                       25
