In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-18-00439-CR

No. 02-18-00440-CR

___________________________

On Appeal from the 371st District Court

Tarrant County, Texas

Trial Court Nos. 1510492D, 1559977R

Before Sudderth, C.J.; Bassel and Womack, JJ.

Memorandum Opinion by Justice Womack

JUAN MANUEL HERRERA, Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION

I. INTRODUCTION

Appellant Juan Manuel Herrera appeals from his convictions for the 

continuous sexual abuse of Julia, a child younger than fourteen, and for the sexual 

assault of Megan, a child younger than seventeen.1 See Tex. Penal Code Ann. 

§§ 21.02(b), 22.011(a)(2), (c). He argues in three appellate issues that the trial court 

abused its discretion by admitting a DNA summary report, which identified him as 

the biological father of Megan’s child, because it was inadmissible hearsay, was 

irrelevant, and denied him the right to confront the analyst who performed the DNA 

test. We conclude that Herrera failed to preserve any of his arguments for our review. 

Accordingly, we affirm the trial court’s judgments.2

II. BACKGROUND

Herrera does not challenge the sufficiency of the evidence to convict him of 

either offense. It is enough to say that Herrera repeatedly sexually abused and 

 

1We use aliases to refer to these minors. See Tex. R. App. P. 9.8 cmt., 9.10; Tex. 

App. (Fort Worth) Loc. R. 7.

2Because the report was introduced as part of the State’s sexual-assault case and 

not the State’s continuous-sexual-abuse case, it appears Herrera raises no challenge to 

his conviction for continuous sexual abuse. Because his notice of appeal challenged 

both convictions, we affirm the continuous-sexual-abuse conviction even though it is 

not specifically challenged in Herrera’s appellate brief. See Ingram v. State, 503 S.W.3d 

745, 747 (Tex. App.—Fort Worth 2016, pet. ref’d).
3

assaulted Megan and Julia, who were his live-in girlfriend’s daughters. Megan 

eventually gave birth to Herrera’s child. 

During the ensuing police investigation, a detective obtained DNA samples

from Megan, the baby, and Herrera. At trial, the State proffered a “supplemental data 

table,” prepared by forensic analyst Rachel Burch. Burch explained how DNA data is 

extracted from obtained samples and how she then can compare the DNA profiles

based on the extracted data:

So what we’ll do is we will take . . . typically . . . a swab that somebody 

takes from the inside of a person’s cheek. We’ll take a cutting from that 

swab. We’ll do something called an extraction. So what that’s doing is 

it’s opening up the cells that were on that swab and releasing the DNA. 

Then we do something called a quantification step, so it lets us know 

how much DNA we got from the extraction. Then we do an 

amplification step, which is that PCR step [i.e., polymerase chain 

reaction], which is going to make copies of the DNA in the areas that 

we’re interested in. And then we load those copies onto an instrument 

that allows us to visualize what that DNA profile is. 

Someone else at Burch’s lab performed “the extraction, the quantification, the 

amplification, and the loading it on the instrument.” Burch then took the “data”

extracted by the instrument “to see if somebody could be the biological father of the 

child” and created the table to explain the DNA data compiled from the prior steps.

3

 

3The State asserts in its brief that the table contains “the computer-generated 

DNA profiles” of Herrera, Megan, and the baby. This statement is not incorrect but 

needs refining. Burch created the table based on the computer-generated DNA data. 

The table is not the report generated by the instrument that compiled the DNA 

“numbers” from the samples. The table was a summary of those numbers based on

Burch’s analysis. 
4

In other words, she took the data obtained after the extraction, quantification,

amplification, and instrumentation steps; analyzed it; and created the table. Herrera 

objected to the admission of the table because it was “[h]earsay.” The trial court 

overruled Herrera’s objection and admitted the table. Herrera did not request a 

running objection. 

Burch then referred to her table and testified that based on her comparisons of

the DNA data, Herrera could not be excluded as being the baby’s biological father

and that 99.999999997% of the male population could be excluded. Herrera did not 

object to Burch’s testimony about the table or to her analysis of the probabilities that 

Herrera was the baby’s father. The jury found Herrera guilty of both offenses and

assessed his punishments at life confinement. 

III. DISCUSSION

In his first issue, Herrera argues that the trial court’s admission of Burch’s 

summary data table was an abuse of discretion because it was “testimony against 

[him]” and, thus, was inadmissible hearsay. At trial, Herrera objected to the admission 

of Burch’s table but did not object to Burch’s subsequent testimony explaining the 

table and its connection to her paternity conclusions. By failing to object each time 

the objectionable evidence was offered or to request a running objection, Herrera

forfeited any error arising from the admission of the table.

4

 See Lumsden v. State, 

 

4Although the State does not raise preservation regarding Herrera’s hearsay 

argument, we have an independent duty to ensure we review only claims that have 
5

564 S.W.3d 858, 888 (Tex. App.—Fort Worth 2018, pet. ref’d), cert. denied, 139 S. Ct. 

2018 (2019); see also Thomas v. State, No. 05-16-01103-CR, 2018 WL 3654908, at *6 

(Tex. App.—Dallas Aug. 2, 2018, pet. ref’d) (mem. op., not designated for 

publication); Turner v. State, 642 S.W.2d 216, 217 (Tex. App.—Houston [14th Dist.] 

1982, no pet.). We overrule issue one. 

In his remaining two issues, Herrera again challenges the trial court’s admission 

of Burch’s table but asserts that the admission was an abuse of discretion because the 

table was irrelevant and because he was not allowed to confront the person who 

performed the extraction, quantification, amplification, and instrumentation steps, 

violating the Confrontation Clause. At trial, Herrera’s sole objection to the admission 

of the table was “[h]earsay.” Because Herrera’s relevance and Confrontation Clause

appellate arguments do not comport with his hearsay trial objection, he has failed to 

preserve these issues for our review. See Tex. R. App. P. 33.1(a)(1)(A); Tex. R. Evid.

103(a)(1)(B); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); McMath v. 

State, No. 05-17-00793-CR, 2018 WL 3491046, at *4 (Tex. App.—Dallas July 20, 

2018, pet. ref’d) (mem. op., not designated for publication); Smith v. State, 494 S.W.3d 

243, 254–55 (Tex. App.—Texarkana 2015, no pet.). We overrule issues two and 

three.

 

been properly preserved in the trial court. See Darcy v. State, 488 S.W.3d 325, 327–28 

(Tex. Crim. App. 2016). 
6

IV. CONCLUSION

Herrera did not preserve his appellate issues for our review. Accordingly, we 

overrule his issues and affirm the trial court’s judgments. See Tex. R. App. P. 43.2(a).

/s/ Dana Womack

Dana Womack

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: August 26, 2019