## 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 Cour t No s. 1510492D, 1559977R

Before Sudderth , C.J.; Bassel and Womack, JJ. Memorandum Opinion by Justice Womack 

### J UA N 

### M ANUEL 

### H ERRERA 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I. I NTRODUCTION Appellant Juan Manuel Herrer a appeals from his convictions for the
continuous sexual abuse of Julia , a child younger than fourteen , and for the sexual

a ssault of Mega n , a child younger than seventeen. 1 See Tex. Pena l Code Ann. §§ 21.02(b) , 22.0 11(a)(2), (c). He argues in three appe llate issues that the trial court abused its discretion by a dmi tting a DNA summa ry report , w hich identified him as the biological father of Megan ’ s child, because it was inadmissible hearsay, was irrelevant, and de nied him the righ t to confront the analyst who per formed the DNA

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

. Acco rdingly, we affirm the trial court ’ s judgme nts. 2
II. B ACKGROUND Herrera does not challenge the suf ficiency of t he evide n ce to convict him of
either offense. It is enough to say that Herrera repeatedly sexually abuse d and

1 W e use aliases to ref

e r t o the se minors. See Tex. R. App. P. 9.8 cmt., 9.10; Tex. App. (Fort Worth ) L oc. R. 7.

2 B e cause the report was in troduced as part of the S tate ’ s sexual

- assault case and not the State ’ s cont

inuous

- sexual

- abuse case, it appears Herre ra raises no challeng e t o his conviction for continuous sex ual abuse. Because his notice of appeal challe nged both convictions, we affi rm the continuous

- se xual

- abuse conviction even though it is not specifically challe nged in Herrera ’ s appellate brief. See Ingram v. State , 5 0 3 S.W.3d 745, 747 (Tex. App.

— Fort Wor th 2016, pet. ref ’ d).3

assaulted Megan and Julia , w h o were his live

- in girlfriend ’ s d aughters

. Megan eventually gave birth to Herrera ’ s child. During the ensuing police investiga tion, a detective obtained D NA samples from Megan, the baby, and Herr era. At tria l, the St ate pr offered a “supplemental data
tab le , ” prepared by forensic analyst Rachel Burch

. Burch explained how DNA data is
extracted from obtained samples and how she then can co mpar e the D NA profiles
bas ed on the extracted data : So what we ’ ll do is we will t a ke . . . typicall y . . . a swab that some body takes from th e i nside of a person ’ s cheek . We ’ ll take a cutting from tha t swab. We ’ ll do something called an ex t raction. So what that ’ s doing is it ’ s opening up the cells that were on that swab and releasing the D NA. Then we do so mething called a quan t ifica ti on ste p, so it lets us k now how much DNA we got from the extractio n. Then we do an amplif ication step, w h ich is that PCR step [i .e., polymerase chain reaction] , which is going to ma ke copi es of the DNA in the areas that
we ’ re interested in . And then we load th ose copies onto an instru ment that allows us to visualize wh at that D NA profile is.
Someone else at Burch ’ s lab performed “ the extraction, the quantification , th e amplification , and the loading it on the instrument. ” Burc h the n took the “ data ” extracted by the instrument “ to see if somebo dy could be the biological father of the
child ” and created the table to explain the D NA dat a comp iled from the pri or steps
. 3

3 The S t ate asserts in its brief that the t able contains “ the co mputer

- generated D NA profil es ” of Herrera, Megan, and the baby

. This statement is not incorrect but needs refining

. B u rch created th e table based on the c omputer

- generat ed DNA data

. The table is not the report gener a te d 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 dat a obtained after the extraction, quantification , amplification , and instrument ation step s ; analy zed it ; and creat ed the ta ble. H errera object ed to the admission of th e table because it was “ [h] earsay. ” The trial court
overruled Herrera ’ s objection and adm itted the table. H errera did not request a running objection.
Bu rch then referred to her table and testified that based on her comparison s of
the D NA data, Herrera could not be excluded as being the baby ’ s biological father
and that 99.999999 997% of th e male p opulation c ould be excluded. Herrera did not object to B urch ’ s testimony about the table or to her analysis of the proba b ilities that
Herrera was the baby ’ s father

. The jury found Herr era guilty of both offenses and assessed his punishments at li fe confinement.
I II. D ISCUSSION In his first issue, Herrera a rgues t hat the trial court ’s admission of Bu r ch ’s summary data table was an abuse of discret ion because it was “testimony against [hi m ] ” and , thus, was inadmissible hearsay. At trial, Herrer a objected to the a dmission
of Burch ’ s table but did not object t o Burch ’s s ubsequent testimony explaining the
table and its connection t o her paternit y conclusions. By f ailing to object each time
the object ionable evidence was offered or to request a run ning objection , Her rera forfeited any error arising fr om the admis sion of the table

. 4 S ee Lumsden v. State ,

4 Althoug h the State does not r aise preser vation regarding Herrer a ’ s hearsay
ar gument, we have a n independent du ty to ensure we review only claims that have5

564 S. W.3d 858, 888 (Tex. App.

— Fort Worth 2018, pet. ref ’d) , cert. denied

, 139 S. Ct.
2018 (2019) ; s ee also Thomas v. S tate , No. 05

- 16

- 01103

- CR, 20 18 WL 3654908, at * 6 (Tex. App.

— Dallas Aug. 2, 2018, pe t. 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 iss ue one. In his rema ining two issues, He rrer a again challenges the trial court ’ s admission
of Burch ’ s table bu t asserts that the admission was an abuse o f disc re tion beca use the table was irrelevant and because he was not allowed to confront the person who perf ormed the extraction, quantificatio n , a mp lification, and instrumentation steps, violating the Confrontation Clause

. At trial, Herrera ’ s sole obj ecti on to the admission
of the table was “ [h]earsay. ” Bec ause Herrera ’ s relevance and Confrontation Cl ause appell ate arguments d o not comport with hi s hearsay trial objection, he has f ailed to
preser ve th ese issues for our review. S e e 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); McMat h v. State , No. 05

- 17

- 00 793

- CR, 2018 WL 34910 46, at *4 (Tex. App.

— Dallas July 2 0, 2018, pet. ref

’ d) (mem . op., not designated for publicati on); 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 Darc y v. State , 488 S.W.3d 3 25, 327

– 28 (Tex. Crim. App. 2016 ).6 IV. C ONCLUSION
Herrera di d not preserve his appellate issues for our review. Accordingly, we
overrule his issues and affirm the trial court ’ s judgment s. See Tex. R. Ap p. P. 43.2(a).

/s/ Dana Womack
Dana Womack Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: August 2 6, 2019