Affirmed; Opinion Filed February 14, 2014. 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05
- 11
- 00362
- CR No. 05
- 11
- 00363
- CR MARCUS JAMERSON , Appellant V. THE STATE OF TEXAS , Appellee On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F10
- 14439
- M & F10
- 14440
- M 

### OPINION ON REMAND Before Justices Moseley, Myers, and Evans Opinion by Justice Evans A jury convicted Marcus Jamerson of two aggravated robberies. Jamerson appealed the conviction and argued that the trial court erred in permitting a forensic biologist to testify about a DNA report she reviewed that was prepared by a non - testifying biologist. This Court affirmed the co nviction. Jamerson v. State , 383 S.W.3d 309 (Tex. App.

— Dallas 2012, pet. granted). The Court of Criminal Appeals granted Jamerson’s petition for discretionary review noting that this Court did not have the benefit of its opinion in Burch v. State , 401 S. W.3d 634 (Tex. Crim. App. 2013) and remanded the cause to us “in light of Burch. ” Following remand, this Court gave the parties the opportunity to file supplemental briefs. Having considered appellant’s sole issue as– 2

– framed by the Court of Criminal Appeal s and the supplemental briefing of the parties , we re affirm the trial court’s judgment. BACKGROUND We provided a detailed recitation of the facts in this case in our opinion on original submission and do not recount them here. Jamerson , 383 S.W.3d at 3 10

. The sole issue in this case involves whether the tria l court erred when it allowed Angela Fitzwater , the reviewing forensic biologist, to testify about the DNA testing done by t he DNA analyst, Tara Johnson . At the time of trial , Johnson was living outside of the United States. Fitzwater testified that after Johnson performed the DNA testing Fitzwater reviewed the data work, reviewed the report, made her own interpretation of the raw data in determining whether Johnson’s interpretations

w ere correct, and signed of f on the report and Johnson’s conclusions in the report as a technical reviewer

. On origina l submission, we stat ed that Fitzwater’s testimony was an explanation of her

own work and not an after

- the

- fact explanation of Johnson’ s work. A s a result , we concluded that Jamerson’s rights under the Confrontation Clause were not violated because he had the opportunity to confront Fitzwater about the testing process, the data gathered, and the analysis she performed. Jamerson filed a p etition for discretionary review challenging our decision and the Texas Court of Criminal Appeals granted the petition. The Court of Criminal Appeals , noting that this Court had rendered its decision without the “benefit of our decision in Burch ,” vacated our judgment and remanded the case to us. 1 For the following reasons, we re - affirm the trial court’s judgment.

1 We note that this Court did issue an opinion in Burch v. State , No. 05

- 11

- 00362

- CR, 05

- 11

- 00363

- CR, 2012 WL 2226456 (Tex. App.

— Dallas 2012, pet. granted) which the Court of Criminal Appeals subsequently affirmed. See Burch , 401 S.W.3d at 640.– 3

– ANALYSIS In the sole issue before the Court, Jamerson argues that the trial court should not have allowed Fitzwater to testify about the DNA testing because such testimony violated his rights under the Confrontation Clause of the Sixth Amendment of the U.S. Constitution . We review a trial court’s decision t o admit such evidence under an abuse of discretion standard. Walters v.
State , 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). After a thorough review of Burch , we cannot conclude that the trial court abused its discretion in allowing Fitzwater to testify

. In Burch , the testifying witness lacked personal knowledge of the DNA testing. See Burch , 401 S.W.3d at 637 (“Although Lopez, the testifying witness, was a supervisor who ‘reviewed’ the original process, we cannot say, on this record, that she had person al knowledge that the tests were done correctly or that the tester did not fabricate the results.”); see also Bullcoming v. New Mexico , 131 S.Ct. 2705, 2716 (2011) (noting that the testifying witness did not have any “independent opinion” regarding defenda nt’s blood

- alcohol concentration but constituted “surrogate testimony”). Thi s is an important distinctio n

— wh ether the expert is giving an independent judgment or is merely acting as a transmitter for the testimonial hearsa y

— b ecause this Court has repeated ly held that the former does not violate the Confrontation Clause

. See Lightfoot v. State , No. 05

- 12

- 00428, 2013 WL 3871041, at *5 (Tex. App.

— Dallas 2013, pet. ref’d) (“Indeed, notwithstanding appellant’s reliance on Bullcoming, this case is different from other recent cases where we followed Bullcoming because, as the trial court pointed out, Fuller did not serve as a mere conduit for another technical supervisor’s conclusions. Instead, she testified regarding what she independ ently observed and concluded

— based [sic] her own experience and after reviewing the maintenance records and logs.”); Hernandez v. State , No. 05

- 11

- 01300

- CR, 2013 WL 1282260, at *6 (Tex. App.

— Dallas 2013,– 4

– pet. ref’d) (testimony of expert was not an “after

- t he

- fact explanation” of non

- testifying witness’s opinion but “an explanation of his independent conclusion in the case.”).
In this case, Fitzwater had personal knowledge of the facts and testified as to her own interpretations of the raw DNA data

. See Ja merson, 383 S.W.3d at 312 (“Fitzwater again confirmed that she made her own interpretation of the raw data in determining whether Johnson’s interpretation was correct.”). Although Fitzwater testified extensively about details of Johnson’s report, she did so on appellant’s cross

- examination of her. As the facts in Jamerson are analogous to those in Lightfoot and Hernandez , we decline to extend the reach of Burch to cases where the testifying witness has personal knowledge of the facts and testifies to thei r own opinions about the conclusions to be drawn from the facts

. CONCLUSION We resolve appellant’s sole issue against him and affirm the trial court’s judgment.

/David Evans/ DAVID EVANS JUSTICE Do Not Publish T EX
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# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARCUS JAMERSON, Appellant No. 05

- 11

- 00362

- CR V. THE STATE OF TEXAS, Appellee On Appeal from the 194th Judicial District Court, Dallas County, Texas Trial Court C ause Nos. F10

- 14439

- M. Opinion delivered by Justice Evans Justices Moseley and Myers participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. Judgment entered this 14th day of February, 2014.

/David Evans/ DAVID EVANS JUSTICE– 6

– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARCUS JAMERSON, Appellant No. 05

- 11

- 00363

- CR V. THE STATE OF TEXAS, Appellee On Appeal from the 194th Judicial District Court, Dallas County, Texas Trial Court Cause No. F10

- 14440

- M. Opinion delivered by Justice Evans. Justices Moseley and Myers participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. Judgment entered this 14th day of February, 2014.

/David Evans/ DAVID EVANS JUSTICE