AFFIRM; Opinion issued October 30, 2012

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No. 05-1 1-00362-CR

No. 05-i 1-00363-CR

MARCUS JAMERSON, Appellant

V.

THE STATE OF TEXAS, Appellec

On Appeal from the 194th Judicial District Court

Dallas County, Texas

Trial Court Cause Nos. F10-14439-M & F10-14440-M

OPINION

Beibre Justices Morris, Moseley, and Myers

Opinion By Justice Morris

At trial. Marcus Jamerson was convicted of two aggravated robberies. In his sole point of

error on appeal. he complains the trial court erred in permitting a forensic biologist to testify about

a DNA report she reviewed for the non-testifying biologist prepared it. Concluding the trial

court did not abuse its discretion in allowing the testimony, we affirm the trial court’s judgments.

I.

Over a period of several hours. a man robbed a woman and her mother at the apartment the

two women shared. He cut the telephone lines in the apartment and disabled the women’s cell

phones. I-Ic hinted at sexually assaulting the daughter, bound both women with duct tape. and
blindfolded them. lie lell the apartment in the mother’s car with man ot the women’s possessions.

The car was found abandoned at a car wash later that day. Inside it. police found a cigarette

butt and a gardening glove. Neither the mother nor the daughter smoked. The daughter stated that

the robber had asked if there were any gloves in the apartment and she had told him where to find

a pair of gardening gloves. Later, the daughter, though blindfolded, could tell from the robber’s

touching her that he was using the gloves.

The two complainants were unable to identi t’y the man who robbed them. although the

daughter was able to give police enough information to generate a computer sketch of the

perpetrator. The sketch was admitted into evidence. She described the robber at trial as a slim, lightskinned black man who appeared to be approximately thirty to forty years old. The robber had

awakened her from sleep, so she did not have her contact lenses in during the robbery, and she

admitted she had oniy seen his face for about forty-five seconds. The mother. who had been forced

to the ground and then blindfolded as soon as she entered the apartment after returning home from

work, had not seen the robber’s face at all. She described him as dark-skinned black man with a slim

build. She told police after the robberies that she would not be able to identify the man in the future.

Several years after the robberies, a prison inmate contacted authorities about identifying

appellant as the perpetrator of a crime. The former inmate testified at trial that, while he and

appellant had been confined together. appellant boasted to him that he had committed a serious

offense for which he had not been caught. The inmate then related a series of details about the

robberies including the location of the apartment. the daughter’s approximate age, the mother’s

profession, and the type of car appellant stole. The fbrmer inmate testified that he did not know the

two complainants and had not heard anything about the robberies before appellant told him what he

had done. He testified that he had not been promised anything for his testimony and had thought the
in tormation he had given would reinal n anonymous. Police testimony, however, showed that the

lormer inmate had actually considered not testifying because he had thought he had turned the

intormation in as a Crime Stoppers tip and was upset he was not being compensated.

Upon learning that appellant had admitted his guilt for the robberies to his fellow inmate,

police obtained a sample of appellant’s DNA to compare to the DNA that had already been gathered

ftom the cigarette butt and glove. The DNA analyst who had pcrtbrmed the testing was living

outside the United States at the time of trial, but her technical reviewer.” who had overseen the

testing and checked the results, testified at trial. The reviewer. Angela Fitzwater. testified that

appellant was conclusively linked to DNA found on the cigarette butt and on the outside of the

gardening glove. At the request of the defense, the trial court admitted the DNA report into

evidence. On cross-examination, Fitzwater admitted that she and her supervisor had missed some

errors made in the report. The errors, however, did not decisively change the results of the DNA

links to appellant.

H.

In his sole point of error, appellant complains the trial court should not have permitted

Fitzwater to testify about the DNA testing because such testimony amounted to a violation of his

rights under the Confrontation Clause. The Confrontation Clause of the Sixth Amendment,

applicable to the states through the Fourteenth Amendment, provides that in all criminal

prosecutions. the accused shall enjoy the right to confront the witnesses against him. Pointer v.

Texas. 380 U.S. 400, 403 (1965). In Crawford v. Washington. 541 U.S. 36 (2004). the Supreme

Court held that out-of-court testimonial evidence violates the Confrontation Clause unless the

There were actually two repos containing all the DNA evidence relevant to the robberies. Both reports were admitted into evidence at the

request of appellant.
declarant is unavailable to testity and the defendant had a previous opportumtv to cross—examine

him. Id. at OX. We review a trial court’s decision to admit complaincd—ol evidence under an abuse

of discretion standard. See Waliers v. S/ale. 247 S.W.3d 204. 21 7 (Tex. Crim .App. 2007).

Flere. outside the presence of the jury. Fitzwater testified that she was the “technical

reviewer’ of the original Ibrensic biologist assigned to the case. lara Johnson. After Johnson

performed the DNA testing and wrote up a draft report, Fitzwater reviewed Johnson’s data work.

reviewed the report, and signed off on it as a technical reviewer before it went through an additional

supervisory review. She confirmed that she went through “step by step every single thing that Tara

Johnson did, every single part ofthat testing and reviewed it and the information that was generated

as a part of that investigation and laboratory work.” She acknowledged that she was not with

Johnson at the time she did her testing, but she reviewed all ofJohnsons notes and all the data that

she generated after her testing. Fitzwater testified that she did not prepare a separate report or

interpret the work independently hut rather reviewed Johnson’s interpretation of the data in her

preliminary report. Clarifying her testimony. Fitzwater said, “When I see that [Johnson hadj

interpreted her data. I would myself as a technical reviewer, interpret the data. And in this case. I

did agree with her interpretation; and therefore. I was able to sign off on her as technical reviewer.”

Fitzwater testified that in addition to being technical reviewer ofJohnson’s reports, she was

also a custodian ofthe records ofthe reports that Johnson prepared in the normal course of business

for the Southwest Institute of Forensic Sciences. Fitzwater further explained that SWIFS uses

technical reviewers in part so that a reviewer may testify in place of the original analyst if the

original analyst leaves the laboratory and is unable to testify in a case.

During her testimony before the jury, Fitzwater elaborated.

[Tihere are three different steps in the DNA testing process. There is the
initial DNA extraction of the samples of the strain l)NA extracted from that

particular sample. Ehe cells are very seldom to be released in DNA. The DNA is

cleaned and purified. it is quantitated to see how much is there. It is then amplilied.

this means that the DNi\ strains are copied over and over. In order to he able to

detect this l)Nr\ by our instrument ...it is an aid to help us visualize the DNA

profile. In each of these steps, the DNA analyst will document on worksheets the

times that these different processes are started, what samples were tested, how much

of the samples were tested, how long they were incubated and those types of steps.

I will then review each one ofthese worksheets and what processes she went through.

I will also review what is called an electropherogram, which is a computer generated

printout of a visualization of the DNA profile. And I will review her interpretation

of these DNA profiles. And the ...DNA packets contained all of these

documentation Lsicj and I go through each page and review each page.

Fitzwater again contirmed that she made her own interpretation of the raw data in determining

whether Johnson’s interpretation was correct.

Fitzwater testified that she did not know appellant but knew some information about the

robberies based on documentation the biologists had received from detectives or on submission

forms. She further testified that there was no pressure on the forensic biologists to link appellant to

the offenses. Fitzwater stated that early testing of the cigarette butt and glove showed only an

unknown male DNA profile. When they later received appellant’s DNA swab. they were then able

to compare and match appellant to the unknown male DNA.

Appellant argues that, under Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and its

progeny, the trial court violated his right to confront the witnesses against him because Fitzwater was

allowed to testify about the contents of the DNA report despite the fact that she was not the analyst

who had done the actual testing. Appellant does not complain that Fitzwater was unable to testis’

about her analysis ofthe raw data but rather that Fitzwater did nothing but parrot Johnson’s findings

and conclusions. Fle contends that Fitzwater was acting as a “conduit” expert for what was actually

Johnson’s opinion. See Builcorning v. New Mexico. 131 5. Ct. 2705, 2716 (2011) (holding use of

‘surrogate” expert to introduce blood-alcohol report prepared by another analyst violated
Confrontation Clause). We disagree.

In this case. Fitzwater. as the technical reviewer assigned to the case. was fhmiliar with each

step of the complex testing process and perIrmed her own analysis of the (lata to compare with

Johnson’s to confirm that Johnson’s analysis was correct. fid. at 2722 (Sotomayor. 3.. concurring)

(specifying that inadmissible report in the case had not been admitted through “a supervisor.

reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue”).

She personally reviewed the data used in each phase ofJohnson’s work. She was able to describe

the precise process ofthe testing because she was familiar with the protocols used in her laboratory.

Her testimony was an explanation of her work in the case, rather than an after-the-fact explanation

ofJohnson’s work. Moreover, neither she nor Johnson had any way of knowing whether the DNA

testing in the case would incriminate or exonerate appellant. See Williams v. Illinois. 132 S. Ct.

2221. 2244 (2012).

To the extent Fitzwater made errors in her review, appellant was able to and did point

out those errors during cross-examination. To the extent Fitzwater did not prepare a separate report

based on her assessment ofthe data, appellant was able to cross-examine her on that matter as well.

Fitzwater did not act as a conduit for Johnson’s conclusions but rather testified about what she

observed and concluded in reviewing the data Johnson’s work produced. (‘f Hall v. State. Nos. 05-

10-00084-CR, 05-10-00085-CR, 05-10-00086-CR. 05-10-00087-CR, 2012 WL 3174130, at *8 (Tex.

App.—Dallas Aug. 7, 2012. pet. ref d) (not designated for publication) (concluding admission oflab

report and testimony about the report by SWIFS supervisor who failed to testify about any

independent judgments she may have formed and instead merely adopted findings of analyst who

tested the drugs and prepared the report violated Confrontation Clause).

Of course, cross-examination of Fitzwatcr may not have addressed every risk of bias or error

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in the forensic testing. Admittedly. all stages of DNA testing may he susceptible to error and

falsilcation. so a defendant must be given a reasonable opportunity to reveal any such errors or

falsifications through cross-examination. State v. Lope;, 45 A.3d 1. 16 (Ri. 2012) (citing Melendez

Dia;. 557 U.S. at 318). The opportunity, however, is not boundless. The Confrontation Clause does

not mandate anyone whose testimony may be relevant in establishing the chain of custody.

authenticity of the sample. or accuracy of the testing device, must appear in person as part of the

prosecution’s case.” Melenclez-Diaz, 557 U.S. at 311 n.l.

The United States Supreme Court recently held that, under the right circumstances, a trial

court does not violate the Confrontation Clause by admitting a DNA report into evidence based on

the testimony of an independent DNA expert with no connection to the testing laboratory or

knowledge of its procedures and who did not take part in the testing or the formulation ofthe report.

See Williams, 132 S. Ct. at 2244. The Supreme Court noted, “[Gjiven the complexity ofthe DNA

molecule, it is inconceivable that shoddy lab work would somehow produce a DNA profile that just

so happened to have the precise makeup of [the defendantJ. The prospect is beyond fanciful.” id.

J-Tere, it was the defense who requested the trial court to admit the report into evidence.

At the time the State offered Fitzwater’s testimony, the report was not admitted into

evidence. Appellant, however, had ample opportunity to confront Fitzwater about the complex

process used in the DNA testing, the data gathered. and the analysis she personally performed to

evaluate Johnson’s analysis. Accordingly. his rights under the Confrontation Clause were satisfied

in this case. See Lopez, 45 A.3d at 16; see also State v. McMillan. 71 8 S.E.2d 640, 647 (NC. Ct.

App. 2011) (holding testimony by forensic pathologist regarding autopsy of victim did not violate

Confrontation Clause because pathologist had been present for autopsy and testified about her own

independent conclusions, though report was written by another doctor). We conclude that the trial
court did not abuse its discretion in permitting F itzvater’s testimony.

We overrule appellant’s sole point of error and aflirm the trial court’s judgments.

TOWBbRRlS

()4JST1CE

Publish

TEX. R. App. P. 47

11 0362F.P05

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JUDGMENT

MARCUS JAMERSON, Appellant

No. 05-1 1-00362-CR V.

THE STATE OF TEXAS. Appellee

Appeal from the I 94th Judicial District Court

of Dallas County. Texas. (Tr.Ct.No. F 10-

14439-N/I).

Opinion delivered by Justice Morris,

Justices Moseley and Myers participating.

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

Judgment entered October 30, 2012.

JPH B. MORRIS

—Ju STICE
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JUDGMENT

MARCUS JAMERSON. Appellant

No. 05-1 1-00363-CR V.

THE STATE OF TEXAS, Appellee

Appeal from the 1 94111 Judicial District Court

of Dallas County. Texas. (Tr.Ct.No. F I 0—

14440-NI).

Opinion delivered by Justice Morris,

Justices Moselcy and Myers participating.

Based on the Courts opinion of this date, the judgment of the trial court is AFFIRMEI).

Judgment entered October 30, 2012.