Affirmed and Opinion on Remand filed July 24, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-10-00266-CR

                 JOVANY JAMPHER PAREDES, Appellant
                                        V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 337th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1241896

                  OPINION              ON      REMAND

      A jury found appellant, Jovany Jampher Paredes, guilty of capital murder
and the trial court imposed the mandatory sentence of life in prison without the
possibility of parole. See Tex. Penal Code Ann. §§ 12.31(a)(2), 19.03(a)(2) (West
2011). Appellant appealed his conviction and argued, among other things, that the
trial court violated the Confrontation Clause by permitting a forensic scientist to
testify regarding her DNA analysis, which relied on raw data generated by non-
testifying analysts. This Court affirmed the conviction. See Paredes v. State, No.
14-10-00266-CR, 2011 WL 3667839 (Tex. App.—Houston [14th Dist.] Aug. 23,
2011, pet. granted) (mem. op., not designated for publication). The Court of
Criminal Appeals granted appellant’s petition for discretionary review, vacated this
Court’s judgment, and remanded the case to us to reconsider the Confrontation
Clause issue in light of its decision in Burch v. State, 401 S.W.3d 634 (Tex. Crim.
App. 2013). See Paredes v. State, No. PD-1420-11, 2013 WL 4507075, at *1
(Tex. Crim. App. Aug. 21, 2013) (per curiam, not designated for publication). On
remand, this Court allowed the parties to file supplemental briefs.          Having
considered appellant’s sole issue as framed by the Court of Criminal Appeals, we
conclude that Burch does not support a holding that the scientist’s testimony in this
case violated the Confrontation Clause. Therefore, we affirm the trial court’s
judgment.

                                  BACKGROUND

      Our prior opinion contains a detailed recitation of the facts of this case, so
we include here only those facts necessary to resolve appellant’s single issue on
remand. See Paredes, 2011 WL 3667839, at *1–*5.

      The State called forensic scientist Robin Freeman to testify regarding her
analysis in appellant’s case. Freeman testified that she worked as the forensic
laboratory director for Identigene, the private laboratory that conducted some of
the DNA analyses in appellant’s case. Freeman explained that Identigene uses a
batch process in which different analysts conduct different steps of the initial DNA
testing using machines that generate raw DNA data. Freeman testified that in her
role as the forensic laboratory director, she supervised this process and was
qualified to perform each step in the process.       Freeman further testified that
Identigene has procedures and protocols in place for all work done by its analysts,
and these procedures and protocols can detect some errors that may occur.

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Freeman also explained that “when you have a problem in analysis, then what
happens is you get no result as opposed to a wrong result.”

       Freeman then turned to the work done specifically in appellant’s case.
Freeman testified that three analysts performed the initial batch processing in
appellant’s case by extracting the DNA, amplifying it, and loading it on the
capillary electrophoresis instrument. She testified that while she did not directly
observe the three analysts performing their work, they provided all of the data and
paperwork they generated to her. Freeman explained she reviewed everything the
analysts did, compiled it, and then performed her own analysis to develop her
opinions on the DNA evidence.             In summary, Freeman opined that (1) the
complainant’s DNA matched the DNA found in a stain on a t-shirt that police had
recovered from the closet of another member of the gang to which appellant
belonged, and (2) scrapings taken from the collar of that same t-shirt yielded DNA
from at least three contributors, with one being a major contributor. A DNA
analyst from another lab testified that appellant’s DNA matched the DNA of this
major contributor, but appellant does not complain about that testimony on appeal.

       Of note in this appeal, none of the three Identigene analysts testified during
appellant’s trial. In addition, none of the raw data generated by the three analysts
was offered or admitted into evidence.1 Finally, the record does not reveal whether
Freeman prepared a report on her opinions; if she did, it was not admitted into
evidence during appellant’s trial.




       1
         While no exhibits were offered or admitted into evidence during Freeman’s testimony,
Freeman did use a demonstrative Power Point exhibit. Appellant did not object to Freeman’s use
of the demonstrative exhibit.

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                                      ANALYSIS
      Appellant argues his right to confront the witnesses against him under the
Sixth Amendment of the United States Constitution was violated because Freeman
based her opinion on raw DNA data produced by three non-testifying analysts
working under her supervision. We rejected this argument on original submission
of the case, stating “Freeman offered her expert opinion after she personally
compiled the DNA data supplied by the non-testifying analysts, interpreted it, and
performed the comparative analysis. An expert witness who offers her opinion
based in part on lab work performed by another does not violate the Confrontation
Clause.” Paredes, 2011 WL 3667839, at *10. The Court of Criminal Appeals
remanded the case to us to reconsider this decision “in light of Burch.” Paredes,
2013 WL 4507075, at *1.

I.    Because the facts of Burch and the present case differ materially, Burch
      does not show that the Confrontation Clause was violated here.
      In Burch, the State offered into evidence a one-page lab report stating that
four Ziploc bags contained cocaine. Burch, 401 S.W.3d at 635. The lab report
was signed by the testing analyst as well as the reviewing supervisor. The State
called only the reviewing supervisor to testify. The supervisor testified that the
testing analyst had performed all of the tests on the cocaine. Id. The supervisor
also testified that the testing analyst no longer worked for the lab, but she did not
offer any explanation for the testing analyst’s departure.      Id.   The Court of
Criminal Appeals held the surrogate expert testimony of the supervisor violated the
Confrontation Clause because the supervisor lacked personal knowledge of the
specific tests used and their execution. Id. at 640.

      In reaching this conclusion, the Court of Criminal Appeals relied primarily
on the United States Supreme Court’s decision in Bullcoming v. New Mexico, 131


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S.Ct. 2705 (2011). In Bullcoming, the prosecution did not call the analyst who
tested the defendant’s blood sample for alcohol because the analyst was on unpaid
leave. Id. at 2709. Instead, the prosecution called another analyst to testify who
was familiar with the laboratory’s procedures. Id. The Supreme Court held that
the lab report, which certified that the defendant’s blood alcohol level was above
the legal limit, was a testimonial statement of the analyst who performed the tests
and therefore could not be offered into evidence through the testimony of a
different or surrogate witness. Id. at 2710.

        Because of notable differences between the facts of the present case and the
facts of both Burch and Bullcoming, we conclude those cases do not support a
result different from our original opinion. First, in the present case, Freeman
testified that if there was a problem conducting the analysis of the DNA, there
would be no result, not an erroneous one. This testimony directly addresses one of
the primary concerns underlying both Burch and Bullcoming: incompetent or
biased analysts. See Adkins v. State, 418 S.W.3d 856, 862 (Tex. App.—Houston
[14th Dist.] 2013, no pet.) (holding no Confrontation Clause violation occurred
because the testifying analyst was able to discern the quality of the blood draw
sample as part of conducting his analysis). In addition, there was no evidence in
the present case that any of the three non-testifying analysts were no longer
employed by Identigene, evidence considered significant in both Burch and
Bullcoming. See Bullcoming, 131 S.Ct. at 2715–16 (pointing out credibility issues
created by the placement of the testing analyst on unpaid leave); Burch, 401
S.W.3d at 635 (noting the testing analyst was no longer employed by the testing
lab).




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      Second, unlike the prosecution in both Burch and Bullcoming, the State in
this case did not introduce into evidence any hearsay documents containing data
generated by the three non-testifying analysts. More specifically, the State did not
introduce either (1) the amplified DNA molecules that the analysts prepared and
inserted into the instrument, or (2) the raw data about those molecules that was
generated by the instrument and provided to Freeman. This presents a question
explicitly left unanswered in Bullcoming, as Justice Sotomayor noted.               See
Bullcoming, 131 S.Ct. at 2722 (Sotomayor, J., concurring) (“We would face a
different question if asked to determine the constitutionality of allowing an expert
witness to discuss others’ testimonial statements if the testimonial statements were
not themselves admitted into evidence.”). Burch indicates that a testifying expert
may rely on unadmitted data generated by a non-testifying analyst—the situation
we are presented with here—without violating the Confrontation Clause. See
Burch, 401 S.W.3d at 639; Lee v. State, 418 S.W.3d 892, 898–99 (Tex. App.—
Houston [14th Dist.] 2013, pet. ref’d).

      Finally and most significantly, unlike in Burch and Bullcoming, Freeman
was not a surrogate witness serving as a mere conduit for another analyst’s
opinions. Instead, Freeman was the analyst who actually developed the opinions
she testified to during appellant’s trial. Freeman also had personal knowledge of
the procedures and equipment used by Identigene. See McWilliams v. State, 367
S.W.3d 817, 820 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding
defendant’s confrontation rights were not violated because testifying expert had
direct connection to scientific test at issue). In addition, Freeman testified at length
and was cross-examined regarding how she developed her independent opinions
regarding the DNA found in the t-shirt stain and collar scrapings. Therefore, we
conclude Burch does not support a holding that admitting Freeman’s testimony


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violated the Confrontation Clause.

II.   Appellant’s rights under the Confrontation Clause were not violated
      because the raw DNA data generated by the non-testifying analysts is
      non-testimonial.
      Burch’s discussion of when statements are testimonial also lends support to
our original conclusion that no Confrontation Clause violation occurred here. “The
Sixth Amendment’s Confrontation Clause provides a simple yet unforgiving rule:
the State may not introduce a testimonial hearsay statement unless (1) the declarant
is unavailable to testify and (2) the defendant had a prior opportunity to cross-
examine the declarant.” Lee, 418 S.W.3d at 895. In the present case, there is no
contention that the three non-testifying analysts were unavailable or that appellant
had an opportunity to cross-examine them. Appellant argues that a Confrontation
Clause violation occurred because Freeman based her opinion on testimonial
hearsay in the form of raw DNA data produced by the non-testifying analysts. To
demonstrate such a violation, appellant must show—among other things—that the
raw data was testimonial.

      In Burch, the Court of Criminal Appeals stated “that the exact contours of
what is testimonial continue to be defined by the courts.” Burch, 401 S.W.3d at
636. It then quoted Crawford v. Washington, 541 U.S. 36, 52 (2004), for the
proposition that testimonial statements are those “‘made under circumstances
which would lead an objective witness reasonably to believe that the statement
would be available for use at a later trial.’” Id. (quoting Crawford, 541 U.S. at 52).
This principle has been applied to forensic reports that are both formal and have
been created for the sole purpose of establishing or proving a fact highly relevant
to a criminal prosecution. Burch, 401 S.W.3d at 636–37 (citing Melendez-Diaz,
557 U.S. 305, 311 (2009)).


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      Burch and Bullcoming stand for two related propositions.           Adkins, 418
S.W.3d at 862. First, a forensic report is testimonial if it asserts a fact such as
blood alcohol content or that a substance is a certain amount of cocaine. Id.
Second, the analyst who determines that fact must be subject to cross-examination.
Id.; see Melendez-Diaz, 557 U. S. at 310 (holding admission of analysts’ affidavits
certifying that substance possessed by the defendant was cocaine without
accompanying testimony by the testing analyst violated the Confrontation Clause).

      Because the raw DNA data generated by the non-testifying analysts does not
meet the requirements of a testimonial statement discussed above, we hold it is
non-testimonial. We reach this conclusion for two reasons. First, unlike in Burch
and Bullcoming, the raw DNA data generated by the non-testifying analysts here is
not found in a formal report and was not admitted into evidence during appellant’s
trial. It cannot be said that the “primary purpose” of this data, which in itself does
not establish any relevant fact, was “creating an out-of-court substitute for trial
testimony.” Michigan v. Bryant, 131 S. Ct. 1143, 1155 (2011). Nor does the raw
data meet either of the testimonial requirements used by the plurality and Justice
Thomas’s concurrence in Williams v. Illinois, 132 S. Ct. 2221 (2012): it was not
prepared “for the primary purpose of accusing” appellant (indeed, even Freeman’s
testimony did not accuse appellant); and it bore no “indicia of solemnity.” Id. at
2243 (plurality op.), 2259 (Thomas, J., concurring in judgment); see also id. at
2244 (plurality op.) (“The technicians who prepare a DNA profile generally have
no way of knowing whether it will turn out to be incriminating or exonerating—or
both.”).

      Second, the raw DNA data was used by Freeman, one of the State’s
testifying expert witnesses, to develop her own opinions that the t-shirt contained
the complainant’s DNA as well as the DNA of a major contributor. It is Freeman’s

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opinions—not the raw DNA data generated by the non-testifying analysts—that
asserted facts relevant to appellant’s prosecution, and appellant was able to cross-
examine her regarding those opinions. As noted in Part I above, both Burch and
our decision in Lee indicate that a testifying expert may rely on unadmitted data to
form an independent opinion without violating the Confrontation Clause.

      Because it is not required that everyone whose testimony may be relevant to
establishing the chain of custody, authenticity of the sample, or the accuracy of the
testing device must appear in person as part of the prosecution’s case, we conclude
Freeman’s testimony did not violate appellant’s Sixth Amendment right to
confront the witnesses against him. Melendez-Diaz, 557 U. S. at 311 n. 1; see
Adkins, 418 S.W.3d at 862 (holding Confrontation Clause not violated even though
nurse who drew defendant’s blood did not testify because analyst who determined
defendant’s blood alcohol level did testify); Infante v. State, 404 S.W.3d 656, 667
(Tex. App.—Houston [1st Dist.] 2012, no pet.) (holding admission of radio serial
number obtained by non-testifying technician did not violate Confrontation Clause
even though technician could have misread the serial number or machine
technician used could have malfunctioned because these factors go to the
evidence’s weight rather than its admissibility); see also Jamerson v. State, Nos.
05-11-00362-CR, 05-11-00363-CR, 2014 WL 1009990, at *2 (Tex. App.—Dallas
Feb. 14, 2014, no pet.) (mem. op., not designated for publication) (holding analyst
who testified regarding her own independent interpretation of raw DNA data
satisfied requirements of Confrontation Clause even though another, non-testifying
analyst had actually conducted the testing that produced the raw data). Therefore,
we overrule appellant’s single issue on remand.




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                                     CONCLUSION

       Having overruled appellant’s sole issue on remand, we affirm the judgment
of the trial court.


                                       /s/    J. Brett Busby
                                              Justice

Panel consists of Justices McCally, Busby, and Donovan.
Publish — Tex. R. App. P. 47.2(b).




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