AFFIRM; Opinion issued October 30, 2012
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In The Qnitrt 

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## uf Lixiz at Ja{1zi 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 oftwo 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’sjudgments. I. Over aperiod ofseveral 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. andblindfolded them. lie lell the apartment in the mother’s carwith man otthe 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 ifthere were any gloves in the apartment and she had told him where to find
a pair ofgardening 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 identit’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 sketchwas admitted into evidence. She describedthe robberattrial 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 afterreturning home from work, had not seen therobber’s face at all. She describedhim as dark-skinnedblackman with a slim build. She toldpolice aftertherobberies that she would notbe able to identifytheman 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 ofdetails about the robberies including the location ofthe apartment. the daughter’s approximate age, the mother’s profession, and the type ofcar appellant stole. The fbrmerinmate testified thathe did not know the two complainants andhad notheard anything aboutthe robberies before appellanttoldhim whathe had done. He testifiedthathe hadnotbeenpromised anything forhis testimony andhad thoughttheintormation he had given would reinaln 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 ofappellant’s DNA to compare to the DNA thathad alreadybeen gathered ftom the cigarette butt and glove. The DNA analyst who had pcrtbrmed the testing was living outside the United States at the time oftrial, 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 ofthe 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 supervisorhad missed some
errors made in the report. The errors, however, did not decisively change the results ofthe 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 ofhis 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 ofappellant.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. reviewedthe report, and signed offon itas atechnical reviewerbefore itwentthrough an additional supervisoryreview. She confirmedthat she wentthrough “step by step every singlething thatTara Johnson did, every single part ofthattesting and reviewed it andthe informationthat was generated
as a part ofthat 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 ofthe data in her preliminary report. Clarifying her testimony. Fitzwater said, “When I see that [Johnson hadj interpreted her data. I would myselfas a technical reviewer, interpret the data. And in this case. I did agree with her interpretation; andtherefore. I was able to sign offon her as technical reviewer.” Fitzwatertestifiedthatin addition to being technical reviewerofJohnson’s reports, she was also acustodian ofthe records ofthereports thatJohnsonprepared inthe normal course ofbusiness 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 ofthe original analyst ifthe 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 theinitial 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 ofthese steps, the DNA analyst will document on worksheets the times thatthese differentprocesses are started, what samples were tested, how much ofthe samples were tested, how long they were incubated and those types ofsteps. Iwillthenrevieweach one oftheseworksheets andwhatprocesses shewentthrough. I will also reviewwhatis called an electropherogram, which is acomputergenerated printout of a visualization ofthe 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 ofthe 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 furthertestifiedthat there was no pressure on the forensic biologists to link appellantto the offenses. Fitzwater stated that early testing ofthe cigarette butt and glove showed only an unknown male DNA profile. When they laterreceived appellant’s DNA swab. they were then able

to compare and match appellant to the unknown male DNA. Appellant argues that, underMelendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and its progeny,thetrial courtviolatedhisrightto confrontthe witnesses againsthimbecauseFitzwaterwas allowed to testify about the contents ofthe 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’ aboutheranalysis ofthe raw databutratherthatFitzwaterdidnothing butparrotJohnson’s findings and conclusions. Fle contends that Fitzwaterwas acting as a “conduit” expert forwhat 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 violatedConfrontation Clause). We disagree. Inthis case. Fitzwater. as 

### the technical reviewer assigned to the case. was fhmiliarwith each step ofthe complex testing process and perIrmed her own analysis of the (lata to compare with Johnson’s to confirm thatJohnson’s analysiswas correct. 

### fid. at2722 (Sotomayor. 3.. concurring) (specifying that inadmissible report in the case had not been admitted through “a supervisor. reviewer, or someone else with apersonal, 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 of

### the testing because she was familiarwiththe protocols used inher laboratory. Hertestimony was an explanation ofher work in the case, ratherthan an after-the-fact explanation ofJohnson’s work. Moreover, neither she nor Johnson had any way ofknowing whetherthe 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 herreview, appellantwas able to and did point outthose errors during cross-examination. To the extent Fitzwaterdid notprepare a separatereport based on her assessment ofthe data, appellant was able to cross-examine her on thatmatter as well. Fitzwater did not act as a conduit for Johnson’s conclusions but rather testified about what she observed and concluded inreviewing the dataJohnson’s workproduced. 

### (‘fHallv. 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. refd) (notdesignatedforpublication) (concluding admissionoflab report and testimony about the report by SWIFS supervisor who failed to testify about any independentjudgments she may have formed and instead merely adopted findings ofanalyst who tested the drugs and prepared the report violated Confrontation Clause). Ofcourse, cross-examination ofFitzwatcrmay nothave addressedeveryriskofbias orerror

—6--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 falsificationsthroughcross-examination. State v. Lope;, 45 A.3d 1. 16 (Ri. 2012) (citingMelendez Dia;. 557 U.S. at 318). The opportunity, however, is not boundless. The ConfrontationClause does not mandate anyone whose testimony may be relevant in establishing the chain of custody. authenticity ofthe sample. or accuracy ofthe testing device, must appear in person as part ofthe 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 ofits procedures and who did nottakepart in the testing orthe formulation ofthereport. See Williams, 132 S. Ct. at 2244. The Supreme Court noted, “[Gjiven the complexity ofthe DNA molecule, itis inconceivable that shoddy lab workwould somehow produce aDNA profile thatjust
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 forensicpathologist regarding autopsy ofvictim did not violate Confrontation Clause because pathologist had been present for autopsy andtestified abouther own independent conclusions, though report was written by another doctor). We conclude that the trialcourt did not 

### abuse its discretion in permitting Fitzvater’ s testimony. We overrule appellant’s sole point oferror and aflirm the trial court’s judgments.

TOWBbRRlS ()4JST1CE Publish TEX. R. App. P. 47 11 0362F.P05

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## Ja1ki JUDGMENT MARCUS JAMERSON, Appellant No. 05-1 1-00362-CR V. THE STATE OF TEXAS. Appellee Appeal from the I 94 th Judicial District Court ofDallas 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 ofthis date, thejudgment ofthe trial court is AFFiRMED.
Judgment entered October 30, 2012.

JPH B. MORRIS 

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## Jixa at Jallai JUDGMENT MARCUS JAMERSON. Appellant No. 05-1 1-00363-CR V. THE STATE OF TEXAS, Appellee Appeal from the 1 94111 Judicial District Court ofDallas County. Texas. (Tr.Ct.No. FI0— 14440-NI). Opinion delivered by Justice Morris, Justices Moselcy and Myers participating.
Based on the Courts opinion ofthis date, thejudgment ofthe trial court is AFFIRMEI).
Judgment entered October 30, 2012.