Affirmed and Majority and Concurring Opinion s filed September 3 , 2020.

In The 

## Fourteenth Court of Appeals

NO. 14
- 19
- 00286
- CR
RAMON TORRES, JR. , Appellant

V. THE STATE OF TEXAS , Appellee
On Appeal from the 208th District Court

Harris County, Texas Tr ial Court Caus e No. 15418 30

M A J O R I T Y O P I N I O N Appellant Ramon Torres, Jr., appeals his conviction for aggravated sexual assault . In a single issue, he contends that his trial counsel provided ineffective assistance by failing to raise a n objection unde r the Sixth A m endment ’ s Confrontatio n Clause to the admission of expert testimony and a lab report linking appellant’s DNA to the complainant

. We reject appellant ’ s issue because he has
not show n that his counsel performed defi cie ntly in failing to object

. W e affirm the trial court’s judgm ent.2 Background
The underlying facts are largely irrelevant to the legal issue presented on appeal , so we do not recount them in detail. A Harris County grand jury indicted appellant of th e o ffense of aggravated sexual as sault. App ellant pleaded not guil ty, and the case proceeded to a jury trial.
A t trial , the evidence showe d that the complainant, a fter being physically and sexually assaulted, went to a hospit al, where a fo ren sic examiner took buccal swabs from the comp la inant’s mouth and swabbed beneath the complaina nt’s fingernails for DNA . The Houston Forensic Science Center (“HFSC”) tested the DNA extracted from beneath the complainant’s fingernails. An H FSC analyst, J ess ica Powers, did not perform the testing hers el f but wrote a report analyzing the result ing data

. At trial, Powers explained the DNA testing process used by HFSC and described the procedures to ensure that the testing is performed correctl y. She also d esc ribed chain

- of

- custody procedures and confir me d that those procedures were follo wed for the sexual as sault kit at issue. P owers testified that appellant could not be excluded as a possible contributor of the DNA extracted from beneath the complainant ’s fingernails. During Powers’s testimony, the St at e offered into evidence State’s Ex hibit 3, the sexual a ssault kit , and State’s Exhibit 4, Powers’s report summariz ing her findings. A ppellant’s counsel objected to both exhibits

. Regarding Ex hibit 4, Pow ers ’s report, c ounsel stated, “ Since she did not do the testing, she cannot testify

a s to what was done or who was involved in it.

. . . It’s not

-- the predicate has not been properly established to introduce this lab report. ” The trial cour t overruled the objection and admitted the report into eviden ce
. Appellant raised no other objec tions during Powers’s testimony. Appellant’s counsel cross

- examined Powers.3

The jury found appellant guilty as charged in the indictment and assessed puni s h men t at imprisonment for sixty yea rs
. Appellant timely appea l ed. Analysis In his sole issue, a ppellant argues that his tri al counsel rendered constitutionally ineffective assistance by failing to preserve a Confrontation Clause obj ect ion to Powers’s opinions and report

. 1
A. Sta ndard of Review
We examine claims of inef f ective assistance of counsel unde r the familiar
two

- prong sta ndard set forth in Strickland v. Washington , 466 U.S. 668 (1984). See Robison v. State , 461 S.W.3d 194, 202 (Tex. App.

— Houston [14th Dist.] 2015, pet. r ef ’ d). Under Strickland , the defendant m u st prove that his trial counsel ’ s representation was deficien t, and that the deficient performance was so serious that it deprived him of a fair trial. Strickland , 466 U .S. at 687. Counse l ’ s representation is def

icient if it falls below an objective sta n dard of reasonableness , based on prevailing professional norm s
. Id. at 688. The prejudice prong requires showing a reasonable probability that the result of the proceed ing would have been different but for trial counsel ’ s deficient performance. Id . at 6 88

- 92.
Our review of trial counse l ’ s representation is highly deferential and presumes that counsel ’ s actions fell within the wide range of reasonable professional assist ance. See Garza v. State , 213 S.W.3d 338, 3 48 (Tex. Crim. App. 2007); Donald v. Stat e , 543 S.W.3d 466, 477 (Tex. App.

— Houston [14th Dist.] 2018, n o pet.) (op. on reh ’ g). The Court of Criminal Appeals also has stated that if

1 A ppellant contends the objection was solel y to “improper predicate,” and th at counsel failed to invoke the Confrontation Clause . The State does not disagree with appellant’s characteriza t ion of counsel’s objection.4

counsel has not had an opp ortunity to explain the challenged actions, we may not find deficient performance unless t he conduct was “so outrageous tha t no competent attorney woul d have engaged in it.” Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
To argue successf

ully that trial counsel ’ s failure to object amounted to ineffective assistance, appellant must show , at a minimum, that the trial court would have erre d in overruling the particular objection , had it been asserted

. See Vaughn v. State , 931 S.W. 2d 564, 566 (Tex. Crim. App. 1996) ; Jagaroo v. State , 180 S.W.3d 793, 800 (Tex. App.

— Houston [14th D i st.] 2005, pet. ref’d) (“Before
t his court may concl ude counsel was in effective for failure to make an objection, appellant must show the trial court would have erred in overruling the obje ction.”).
B. The Confrontation Cl ause and Applicable Law
The Confront a tion Clause of the Sixth Amendmen t guarantees an acc used the right to confront the witnesses against him. See U.S. Const. amend. VI ; Pointer v. Texas , 380 U.S. 400, 403 (1965). The United States Supreme Court has appli ed this rule to “testimonial” statem ents and held that such statements are inadmissible a t trial unless the witness who made them either takes the stand to be

cross
- examined or is unavailable and the defendant had a prior oppo rtunity to

cross
- examine the w itness. Crawford v. Washington , 541 U.S. 36, 54 (2004). In Crawford , the Supreme Court included in the cl ass of testimonial statements those “that were made under circumstances which would l ead an objective witness reasonabl y to believe that the statemen t would be available for use at a la ter trial.” Id. at 52

. A ppellant contends that the testing dat a Power s interpreted in her report is testimonial hear say
. According to appellant , admitting the report without a sponsoring witness who actually performed the testing vi olates the Confron tati on5

Clause, and counsel’s failure t o raise that objection constitute s ineffective assistance. The State responds that the Court of Cri minal Appeals has addressed and rejected appellant’s contention.
In Paredes v. State , the Court of Criminal Appeals answere d the following question: “ Does t he admission of a supervising DNA a nalyst ’ s opinion regarding a DNA match violate the Confrontation Clause when that opinion is based upon computer

- generated data o btained through batch DNA testing? ” Pared es v. State , 462 S.W.3d 510 , 511 (Tex. Crim. App. 2015). To answer this question, th e court studied its own precedent, as well as opinions from the United States Supreme Court. See id. at 514

- 17 (discussing Melen dez

- Diaz v. Massachusetts , 557 U.S. 305 (2 009) ; Bullcoming v. New Mexico , 564 U.S. 647 (2011 ) ; Williams v. Illinois , 567 U.S. 5 0 (2012) ; and Burch v. State , 401 S.W.3d 634 (Tex. Crim. App. 20 13) ).
The Paredes court found Burch and Bullcoming particular ly i nformative

. 2 In Burch , the State offered into evidence a lab report certifying that the sub stance tested was cocaine. Burch , 401 S.W.3d at 635

. Both the testing analyst and the reviewing a nalyst signed the lab report, but the State called only the revie wer to testify at trial. Id. The reviewing analyst testi fied that she “basically double

ch ecked everything” that the testin g analyst did, but there was no indication that she personally had conducted any tests or observed any tests being performed. Id. at 635

- 36. The Burch court held that the state ’ s approa ch to proving the repor t violated the Con frontation Clause because the reviewer had no person al knowledge that the tests were done correctly. Id. at 637

- 38.

2 The court noted that the United States Supreme Court’s decision in Williams , alt ho ugh it addressed similar DNA te sting and Confrontation Clause issues, was an “irrec oncilably divided opinion” that provided little precedenti a l value

. Paredes , 462 S.W.3d at 516. Accordingly, the Paredes cour t focused primarily on Burch and Bullcoming

.6

In Bullcoming , the defendant was charged with driving while intoxicated (DWI) , and the prosecutor i ntro duced a lab report certifyin g that the def endant ’ s blood

- alco hol content was above the limit for the New Mexico offense of aggravated DWI. Bullcoming , 564 U.S. at 651

. The analyst who tested the defendant ’ s blood and signed the report did not testi fy ; in stead, the prosecution calle d a different analyst, one who wa s familiar with general te sting procedures conducted at the lab, but who did not review th e testing analyst ’ s work or sign the forensic report. Id. at 655

. The Supreme Court held that the l ab r eport itself was testimonial and that the “surrogate testimon y” given by the non

- testin g analyst explaining the report violated the Confrontation Claus e. Id. at 661

. From these cases, the Paredes court gleaned several general principles. First, the c ourt said, t he admission of a la b report creat ed solely by a non

- testifying analyst, withou t calling that analyst to sponsor it, violates the Confrontation Clause. Paredes , 462 S.W.3d at 517. Second, testimony from an expert explaining a non
- testifying a naly st ’ s report does not provide an adequate s ubstitute for cross

- examination even if the t estifying expert is generally familiar with how the relevant ana lysis is customarily performed. Id. And third, f or an expert ’ s testimony based upon forensic anal ys is p erformed solely by a non

- tes tifying analys t to be admissible, the testifying expert mus t prese nt his or her own opinions and conclusions ; w h ile the testifying expert can rely upon information from a non

testifying analyst, the testifying expert canno t act as a surrogate to introduce that inf ormation. Id. at 517

- 18. With these pri nciples in mind, the Paredes court turned to the facts of that

c ase
. Th e State called an expert to testify about the DNA analyses performed on

an item of clothing . T he anal ys t testified about the manner in which the DN A testing wa s conduct ed

. T he analyst did not perform the underlying testing but she7

supervised the proce edings and analyzed the raw data to reach a final conclusion

— i.e., she compar ed the produced DNA profiles t o t he evidence and determin ed a match existed

. Id. at 512.
Based on th os e facts, t he Paredes court consider ed Bullcoming and Burch distinguishable . In both of those cases, the prosecution offered a lab report containing testimonial statements through t he expert t estimony of a person wh o did not make , and could not ver if y the authenticity of , th e statements

. See Bullcoming , 564 U.S . at 655 ; Burch , 401 S.W.3d at 634

- 35. In Paredes , on the other hand, the testifying analyst performed “the crucial a nalysi s determining the DNA match and
te st ified to her own conclusions , ” a nd therefore the testifying witness was more than a surrogate fo r a non
- testifying analyst’s report. Paredes , 462 S.W.3d at 518. The Paredes court further distinguished Bullcoming and Bu rc h by pointing out that the testi fying expe rt in Paredes “ relied u p on raw, computer

- generated data in reaching her conclusion rathe r than another laboratory analyst ’ s report. ” Id. The testifying analyst formed her opinion after analyzing DNA profiles , w hi ch is raw data generated by a ca pillary el ectrophoresis instrumen t

. Id. at 519. Th e raw data , the court said, is not the functio nal equivalent of live, in

- court testimony because it comes from a computer, not f rom a witness subject to cross
- examin ation

. Id.
The Paredes court therefore concluded that the analyst’s tes t imony did not violate the Confrontation Clause

. Id. The analys t did not introduce or testify regarding a formal report or assertion from a non

- testifying analyst. Instead, she used non

- te stimonial information

— computer

- g enerated D NA data

— to form an inde p endent, testimonial opinion , and the defendant was given the opp ortunity to

cross
- examine her about her analysis. Id.8

C. Application We agree with the State that Paredes governs our decision

. Here , as in Paredes , the testif

ying analy st (Powers) did not p er f orm the underlying DNA tests herself but rather prepared the fin al analysis and reached a conclusion by comparing the produced DNA profiles to the evidence and determining a match existed

. Powers pr epared the report. She based her opinion on raw compu te r
generated data , not on a testimonial report or assertion from a non
- testifying analyst . Although Powers did not describe the testing process in as much detail as did the analyst in Pared es , Powers explain ed the discrete steps of DNA testing her la b performs, including safeg uards and control tests, and she reference d “ the capillary electrophoresis that generate s the data for us to review, ” which is suff i cient to indicate that the data she re viewed was computer

- generate d. See id. at 519 (discuss ing the raw DNA data genera ted by a capillary electrophoresis instrument ). We conclude, therefore, that the facts in today ’ s case fall within Paredes ’s purview.
T oday’s case differs from Pare des in on e respect, however. Here, t he St ate introduced Powers’ s written report, not just he r opinion testimony. The expert report was not admitted in Paredes

. Compare id. at 513 (“ The record is unclear about whether [the testifying analyst] herself cre ate d a re port based on her

o p inions, but e ven if she did, the St ate did not admit any such re port into evidence. The State offered only [the analyst’s] opinion testimony. ”). We consider this difference immaterial to the resolution of appellant’s complain t

. Power s’s report consis t ed solely of he r opinion and did not refer to any underlying testi monial lab report of another

. See, e.g. , Garrett v. State , 518 S.W.3d 546, 55 4 (Tex. App.

— Houston [1st Dist.] 2017 , pet. ref’d ) ( testifying analyst’s report admis sib le bec ause, inter alia , it did not indi cate that analysts oth er than testifying analyst we re9

involved in the testing of the evidence )

. Unlike in the cases appellant cites, Powers ’s testimony and report do not sug gest that Powers was acting merely as a
sur rogate fo r someone else w ho analyz ed the data; Powers perform ed the critical analysi s and reached the ultimate conclusion herself. In addition to a summary of Powers’s opinion, t he report also included a single page of data, which appears, based on the re port’s no t es, to be the c omputer

- g enerated DNA profiles on wh ich Powers base d her op inion. But t his raw data is non

- testimonial and “stand[s] for nothing on [its] own” without interpretation by an expert. Paredes , 462 S.W.3d at 519 ; cf. Bullcoming , 564 U .S. at 6 6 0

- 61 ( non
- testi fying anal yst’s forensic report on

w hich the testif

ying ana lyst relied was sufficient on its own to certif y the defendant ’ s blood alcohol content)

. The present case is not the first time our court has addressed circumstances similar to th os e in Paredes

. I n Whitfiel d v. State , the defendant objected at tri al to th e State’s witness who offered her expert opinion regarding the ultimate DNA comparison results , when, according to the defendant, the State instead should have present ed all the t echnicians involve d in the D NA testing process. See W hitfiel d v. State , 524 S.W.3d 780, 782 (Tex. App.

— Houston [14th Dist.] 2017, pet. ref’d). The trial court overruled the trial objections, and this court affirmed the rulings, concluding that admi s sion of the expert’s te stimony di d not violate the defendan t’s rig hts under the Co nfrontation Clause. Id. at 783, 788. Relying on Paredes , we reasoned that the expert performed the crucial analysis to determine the DNA match and testified to her own con c lusio ns , and that the d efendan t h ad the opportunity to cros s
- exami ne the expert ab out her conclusions linking the defendant to the crime based on the defendant ’ s DNA and about how the expert arrived at those conclusions. Id. at 786

- 88 (citing Paredes , 46 2 S.W. 3d at 514, 519 ); see also Ma

ye r v. State , 494 S.W.3d 8 44, 85 1

- 5 2 (Tex. App.

— Houston [14th10

Dist.] 2016 , pet. ref’d ) ( rejecting appellant’s argument that she should be afforded under the Confrontation Clause an opportunity to confront all the techn i cia ns who had any access to the DNA s am ples at issue )

. Powers u sed non

- testimonial info rmation

— computer

- generated DNA data

— to form an independent, testimonial opinion memorialized in the report admitted at trial and about which she testified li v e at trial . A ppella nt was given the op portunity to cross

- examine her abou t her analysis and her r eport

. There is no Confrontation Clause violation on these facts. See Paredes , 462 S.W. 3d at 519; Whitfield , 524 S.W.3d at 786

- 88; Mayer , 494 S.W.3d at 851

- 52 ; see also G arrett , 518 S.W.3d at 555 (“ We the refore agree with the State that because Davis independently analyzed the raw DNA data and offered his own opinion concerning the comparison of the DNA profiles, and he testi fied a nd was subject to cross

examination, the a dmissi on of his testimony and his lab report, even in the absence of testimony from [testing analysts] , does not violate the Confrontation C l ause. ”). Appellant cannot demonstrate th at his trial counsel provid ed ine ffective assistance in failing to raise a Confro nt ation

- Clause objection wit hout showing that the trial court would have err ed in overruling the objection , had it been asserte d

. See Vaughn , 931 S.W.2d at 566; Jagaroo , 180 S.W.3d at 797 . Appe llant has not made the required showing because no Conf rontat io n
- Clause violation has

occ urred here. Had trial counsel timely raised the objection, the trial court would not have erred i n overruling it. Appellant’s counsel’s performan ce was not deficien t in the manne r appellant assert s , and thus appellant’s ineffe ctive

assis tance complaint fails on the first Strickland prong
. Conclusion Appellant has not shown that the t rial court would have erred in overruling an objection to the testifying expert ’ s report ba sed on the Confrontation Clause.11

Accordingly, ap pellan t has not demonstrated that his cou nsel’s performance was deficient. We need not address whether counsel’s performance caused prejudice under Strickland

. W e overru le appellant’s sole issue.
We affirm the trial court’s judgment.

/s/ Kevin J ewell Justice

Panel consists of Chief Justice Frost and Just i ces Jewell and Spain (Spain, J., concurring)

. Publish

— Tex. R. App. P. 47.2( b).