                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-15-00111-CR

JUAN FRANCISCO SEGOVIA,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2013-1209-C2


                          MEMORANDUM OPINION


      The jury convicted Juan Francisco Segovia of the offense of murder and assessed

his punishment at 75 years confinement. We affirm.

                                   Background Facts

      There is no challenge to the sufficiency of the evidence. On October 14, 2012,

Anthony Degrate and his cousin, Edmund Jones, were leaving a nightclub in a vehicle

driven by Jones. They had an altercation in the parking lot with a person in a black Ford
Mustang and then a second altercation with that person at the parking lot exit. Jones

testified that after leaving the parking lot, the driver of the black Mustang pulled up next

to his vehicle while stopped at a red light. The driver of the black Mustang got out of his

vehicle and approached the vehicle of Jones and Degrate. Jones identified the person in

the black Mustang as Appellant. As Appellant approached their vehicle, Degrate opened

his door and struck Appellant. Degrate got out of the vehicle and he and Appellant were

“tussling.” Jones testified that he walked around to the back of his vehicle, and Degrate

was lying on the ground with blood on his shirt. Degrate suffered two stab wounds and

later died from his injuries.

                                    In-Court Identification

          In his first issue, Appellant argues that the trial court erred in failing to exclude

Jones’s in-court identification because it was tainted by an impermissibly suggestive

pretrial photo lineup. We review de novo a trial court's ruling on how the suggestiveness

of a pretrial photo array may have influenced an in-court identification. Gamboa v. State,

296 S.W.3d 574, 581 (Tex. Crim. App. 2009). A pretrial identification procedure may be

so suggestive and conducive to mistaken identification that subsequent use of that

identification at trial would deny the accused due process of law. Simmons v. United

States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); Barley v. State, 906 S.W.2d

27, 32-33 (Tex.Crim.App.1995), cert. denied, 516 U.S. 1176, 116 S.Ct. 1271, 134 L.Ed.2d 217

(1996).     An in-court identification is inadmissible when it has been tainted by an


Segovia v. State                                                                          Page 2
impermissibly suggestive pretrial photographic identification. Luna v. State, 268 S.W.3d

594, 605 (Tex.Crim.App.2008).

        To determine the admissibility of both pretrial identification and potentially

tainted in-court identification, we ask, considering the totality of the circumstances, (1)

whether the identification procedure was impermissibly suggestive and, if so, (2)

whether the improperly suggestive procedure created a very substantial likelihood of

irreparable misidentification. Simmons v. United States, 390 U.S. at 384, 88 S.Ct. at 971;

Barley v. State, 906 S.W.2d at 33. The defendant must prove both elements by clear and

convincing evidence. Barley v. State, 906 S.W.2d at 33-34. Only if we determine that the

pretrial identification procedure is impermissibly suggestive do we examine whether it

tainted the in-court identification. Id. at 34. Factors to be considered when making a de

novo review are: 1) the witness's opportunity to view appellant at the time of the crime;

2) the witness's degree of attention; 3) the accuracy of the witness's prior description of

the criminal; 4) the witness's level of certainty at the time of confrontation; and 5) the

length of time between the offense and the confrontation. Gamboa v. State, 296 S.W.3d at

582.

        In his motion to suppress the identification, Appellant argued that the photo

lineup was impermissibly suggestive because his picture was different than the rest of

the photos and his posture in the picture was different from the others. At a pretrial

hearing, Appellant argued that the lineup was suggestive in that the others in the lineup


Segovia v. State                                                                     Page 3
were not of the same size, weight, age, and physical characteristics as Appellant. During

the trial, the trial court held a brief hearing on the motion outside the presence of the jury

and denied Appellant’s motion to suppress.

        Jones described the assailant as being a Hispanic male in his 30’s and kind of short.

Another witness to the stabbing described the assailant as being a light skinned Hispanic

male between 20 and 30 years-old who was tall and slender. Detective Kristina Woodruff

with the Waco Police Department testified that she prepared a photo lineup of six men

and showed the lineup to Jones and the other witness. Jones viewed the photo lineup in

the back seat of the police car outside of his apartment because he was home with a sick

child. Jones identified Appellant from the photo lineup as the assailant, but the other

witness could not identify anyone from the photos as being the assailant.

        Appellant argues on appeal that the photo lineup was suggestive in that his photo

is distinctive and stands out from the others. He contends the posture of his head is

different and that the photo is taken at a closer range than the others. He further argues

that he is the only slender person portrayed in the photos, that he is significantly older

than the others, and that two of the other persons in the photos have darker skin tones.

        The record shows that all of the people in the photo lineup were Hispanic males

with birthdates within three years of Appellant’s birthdate. The men all had similar facial

hair and hair length. The pictures are all headshots from the chest up and do not reflect

height or weight. In his picture, Appellant’s head is slightly turned; however, it is not a


Segovia v. State                                                                        Page 4
remarkable difference from the other pictures. There is nothing to indicate that the

posture of his head in the photo was suggestive.         Considering the totality of the

circumstances, we conclude the pretrial identification process conducted in this case was

not impermissibly suggestive. We overrule the first issue.

                                    Expert Testimony

        In his second issue, Appellant argues that the trial court erred in not allowing a

defense expert witness to testify. Texas Rule of Evidence 702 provides: "If scientific,

technical, or other specialized knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness qualified as an expert by knowledge,

skill, experience, training, or education may testify thereto in the form of an opinion or

otherwise." TEX.R.EVID. 702. Under Rule 702, it is the trial court's responsibility to

determine whether proffered scientific evidence is sufficiently reliable and relevant to

assist the jury. Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005); Jackson v.

State, 17 S.W.3d 664, 670 (Tex.Crim.App.2000). A trial court's ruling on the admissibility

of scientific expert testimony is reviewed under an abuse of discretion standard. Russeau

v. State, 171 S.W.3d at 881; Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000).

        The proponent of scientific evidence must demonstrate to the trial court, by clear

and convincing evidence, that the scientific evidence is reliable. Russeau v. State, 171

S.W.3d at 881. The proponent of "hard" scientific evidence must satisfy three criteria to

demonstrate reliability: (1) the underlying scientific theory is valid; (2) the technique


Segovia v. State                                                                     Page 5
applying the theory is valid; and, (3) the technique was properly applied on the occasion

in question. Russeau v. State, 171 S.W.3d at 881; Kelly v. State, 824 S.W.2d 568, 573 (Tex.

Crim. App. 1992).      Other non-exclusive factors that could affect a trial court's

determination of reliability include: (1) the extent to which the underlying scientific

theory and technique are accepted as valid by the relevant scientific community, if such

a community can be ascertained; (2) the qualifications of the expert testifying; (3) the

existence of literature supporting or rejecting the underlying scientific theory and

technique; (4) the potential rate of error of the technique; (5) the availability of other

experts to test and evaluate the technique; (6) the clarity with which the underlying

scientific theory and technique can be explained to the court; and (7) the experience and

skill of the person who applied the technique on the occasion in question. Russeau v. State,

171 S.W.3d at 881-882; Kelly v. State, 824 S.W.2d at 573.

        Appellant called Arthur Wah Young to testify outside the presence of the jury as

an expert witness. Young is a forensic biology specialist and has testified in court as an

expert in DNA comparisons.        Young was called to testify on “the findings of the

laboratory and specifically the absence of certain results and how results from a foreign

contributor could have been obtained with a different approach to the examination of the

evidence.”

        Young would testify about a technique known as “vacuum swabbing” and how

that process could have obtained foreign DNA profiles from the victim’s shirt. Young


Segovia v. State                                                                      Page 6
described the process of “vacuum swabbing” and stated that his company, Guardian

Forensic Services, is able to use the technique.        Young did not know if the Texas

Department of Public Safety Crime Laboratory has formally adopted the use of the

technique. Young stated that he could not say that the DPS lab made any mistakes in

testing or did anything wrong, rather his “opinion is that if she had tested other areas or

had been provided samples that came from other areas, based on the case work

information, that you might be able to get someone other than the victim who was the

one who was wearing the shirt at the time.” He testified that someone should have used

the vacuum swabbing technique.

        Young could not say whether any labs in Texas used by the public currently use

the vacuum swabbing technique. Young said the technique was presented in an article

in The Journal of the International Association of Identification “sometime in the early 2000s.”

Young did not know of any other publications or treatises proving the technique to be

reliable. Young further did not know if the vacuum swabbing technique had ever been

admitted in a Texas court as a qualified or reliable technique.

        The trial court asked Young if the vacuum swabbing technique is accepted as valid

by DNA scientists. Young responded:

        For the handful of DNA scientists that I know that have used it in the past,
        then yes. The answer is yes. But the problem becomes, number one, what
        is reliability when you’re testing a technique that is attempting to get very
        low levels of DNA. There’s no frame of reference which to compare it to.
        Number two, the number of articles that I’m aware of, just being the one,


Segovia v. State                                                                         Page 7
        was simply an introduction to me of how the technology worked or how
        the method worked.

Young further stated:

        I don’t know if I can say if it’s been universally accepted because it’s such a
        small handful that’s using it. But I have not heard any disagreements from
        any scientist that it doesn’t work, that it’s not good. If anything, the one
        comment that I’ve heard is that it works a little bit too well. It picks up too
        much DNA.

The trial court excluded Young’s testimony based upon issues with the reliability of the

science.

        Appellant did not meet his burden to show by clear and convincing evidence that

the scientific evidence of vacuum swabbing is reliable. Moreover, Young was called to

testify that the vacuum swabbing could have found DNA on the victim’s shirt. However,

Appellant never requested vacuum swabbing testing be conducted on the victim’s shirt.

The trial court did not abuse its discretion in excluding the testimony of Young. We

overrule the second issue.

                                         Conclusion

        We affirm the trial court’s judgment.




                                           AL SCOGGINS
                                           Justice




Segovia v. State                                                                          Page 8
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 31, 2016
Do not publish
[CR PM]




Segovia v. State                              Page 9
