Affirmed; Opinion Filed February 14, 2014.




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-11-00362-CR
                                       No. 05-11-00363-CR

                               MARCUS JAMERSON, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                      On Appeal from the 194th Judicial District Court
                                   Dallas County, Texas
                    Trial Court Cause Nos. F10-14439-M & F10-14440-M

                                OPINION ON REMAND

                            Before Justices Moseley, Myers, and Evans
                                     Opinion by Justice Evans

       A jury convicted Marcus Jamerson of two aggravated robberies. Jamerson appealed the

conviction and argued that the trial court erred in permitting a forensic biologist to testify about a

DNA report she reviewed that was prepared by a non-testifying biologist. This Court affirmed

the conviction. Jamerson v. State, 383 S.W.3d 309 (Tex. App.—Dallas 2012, pet. granted). The

Court of Criminal Appeals granted Jamerson’s petition for discretionary review noting that this

Court did not have the benefit of its opinion in Burch v. State, 401 S.W.3d 634 (Tex. Crim. App.

2013) and remanded the cause to us “in light of Burch.” Following remand, this Court gave the

parties the opportunity to file supplemental briefs. Having considered appellant’s sole issue as
framed by the Court of Criminal Appeals and the supplemental briefing of the parties, we re-

affirm the trial court’s judgment.

                                            BACKGROUND

        We provided a detailed recitation of the facts in this case in our opinion on original

submission and do not recount them here. Jamerson, 383 S.W.3d at 310. The sole issue in this

case involves whether the trial court erred when it allowed Angela Fitzwater, the reviewing

forensic biologist, to testify about the DNA testing done by the DNA analyst, Tara Johnson. At

the time of trial, Johnson was living outside of the United States. Fitzwater testified that after

Johnson performed the DNA testing Fitzwater reviewed the data work, reviewed the report,

made her own interpretation of the raw data in determining whether Johnson’s interpretations

were correct, and signed off on the report and Johnson’s conclusions in the report as a technical

reviewer.

        On original submission, we stated that Fitzwater’s testimony was an explanation of her

own work and not an after-the-fact explanation of Johnson’s work. As a result, we concluded

that Jamerson’s rights under the Confrontation Clause were not violated because he had the

opportunity to confront Fitzwater about the testing process, the data gathered, and the analysis

she performed.

        Jamerson filed a petition for discretionary review challenging our decision and the Texas

Court of Criminal Appeals granted the petition. The Court of Criminal Appeals, noting that this

Court had rendered its decision without the “benefit of our decision in Burch,” vacated our

judgment and remanded the case to us. 1 For the following reasons, we re-affirm the trial court’s

judgment.

    1
     We note that this Court did issue an opinion in Burch v. State, No. 05-11-00362-CR, 05-11-00363-CR, 2012
WL 2226456 (Tex. App.—Dallas 2012, pet. granted) which the Court of Criminal Appeals subsequently affirmed.
See Burch, 401 S.W.3d at 640.

                                                    –2–
                                          ANALYSIS

       In the sole issue before the Court, Jamerson argues that the trial court should not have

allowed Fitzwater to testify about the DNA testing because such testimony violated his rights

under the Confrontation Clause of the Sixth Amendment of the U.S. Constitution. We review a

trial court’s decision to admit such evidence under an abuse of discretion standard. Walters v.

State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007).

   After a thorough review of Burch, we cannot conclude that the trial court abused its

discretion in allowing Fitzwater to testify. In Burch, the testifying witness lacked personal

knowledge of the DNA testing. See Burch, 401 S.W.3d at 637 (“Although Lopez, the testifying

witness, was a supervisor who ‘reviewed’ the original process, we cannot say, on this record, that

she had personal knowledge that the tests were done correctly or that the tester did not fabricate

the results.”); see also Bullcoming v. New Mexico, 131 S.Ct. 2705, 2716 (2011) (noting that the

testifying witness did not have any “independent opinion” regarding defendant’s blood-alcohol

concentration but constituted “surrogate testimony”). This is an important distinction—whether

the expert is giving an independent judgment or is merely acting as a transmitter for the

testimonial hearsay—because this Court has repeatedly held that the former does not violate the

Confrontation Clause. See Lightfoot v. State, No. 05-12-00428, 2013 WL 3871041, at *5 (Tex.

App.—Dallas 2013, pet. ref’d) (“Indeed, notwithstanding appellant’s reliance on Bullcoming,

this case is different from other recent cases where we followed Bullcoming because, as the trial

court pointed out, Fuller did not serve as a mere conduit for another technical supervisor’s

conclusions. Instead, she testified regarding what she independently observed and concluded—

based [sic] her own experience and after reviewing the maintenance records and logs.”);

Hernandez v. State, No. 05-11-01300-CR, 2013 WL 1282260, at *6 (Tex. App.—Dallas 2013,




                                               –3–
pet. ref’d) (testimony of expert was not an “after-the-fact explanation” of non-testifying

witness’s opinion but “an explanation of his independent conclusion in the case.”).

    In this case, Fitzwater had personal knowledge of the facts and testified as to her own

interpretations of the raw DNA data. See Jamerson, 383 S.W.3d at 312 (“Fitzwater again

confirmed that she made her own interpretation of the raw data in determining whether

Johnson’s interpretation was correct.”). Although Fitzwater testified extensively about details of

Johnson’s report, she did so on appellant’s cross-examination of her. As the facts in Jamerson

are analogous to those in Lightfoot and Hernandez, we decline to extend the reach of Burch to

cases where the testifying witness has personal knowledge of the facts and testifies to their own

opinions about the conclusions to be drawn from the facts.

                                        CONCLUSION

       We resolve appellant’s sole issue against him and affirm the trial court’s judgment.



                                                             /David Evans/
                                                             DAVID EVANS
                                                             JUSTICE

Do Not Publish
TEX. R. APP. P. 47
110362RF.U05




                                               –4–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

MARCUS JAMERSON, Appellant                          On Appeal from the 194th Judicial District
                                                    Court, Dallas County, Texas
No. 05-11-00362-CR        V.                        Trial Court Cause Nos. F10-14439-M.
                                                    Opinion delivered by Justice Evans
THE STATE OF TEXAS, Appellee                        Justices Moseley and Myers participating.

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

Judgment entered this 14th day of February, 2014.




                                                    /David Evans/
                                                    DAVID EVANS
                                                    JUSTICE




                                             –5–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

MARCUS JAMERSON, Appellant                          On Appeal from the 194th Judicial District
                                                    Court, Dallas County, Texas
No. 05-11-00363-CR        V.                        Trial Court Cause No. F10-14440-M.
                                                    Opinion delivered by Justice Evans.
THE STATE OF TEXAS, Appellee                        Justices Moseley and Myers participating.

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

Judgment entered this 14th day of February, 2014.




                                                    /David Evans/
                                                    DAVID EVANS
                                                    JUSTICE




                                             –6–
