Wilber Ulises Molina v. State ( 2019 )

Opinion issued August 29, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00317-CR
———————————
WILBER ULISES MOLINA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1433542
DISSENTING OPINION
A jury found appellant, Wilber Ulises Molina, guilty of the felony offense of
aggravated sexual assault1 and assessed his punishment at confinement for fifty-five
years. In his first and second issues, appellant contends that the evidence is legally
1
See TEX. PENAL CODE ANN. § 22.021.
insufficient to support the appellant’s conviction and the trial court erred in admitting
certain testimony in violation of his constitutional right to confrontation.2
At trial, over appellant’s objection, the trial court allowed a deoxyribonucleic
acid (“DNA”) analyst to testify based on DNA testing performed by others at an
independent, out-of-state laboratory with which the analyst had no affiliation. In
doing so, the trial court erroneously allowed DNA evidence to be admitted through
a surrogate witness in violation of appellant’s constitutional right to confrontation.
The erroneously admitted DNA evidence was the only evidence admitted into the
record linking appellant to the aggravated sexual assault of the complainant.
Accordingly, I would hold that the evidence is legally insufficient to support
appellant’s conviction. Because the majority opinion holds that the trial court did
not err in admitting the testimony of the DNA analyst in violation of the appellant’s
right to confrontation and that there is legally sufficient evidence to support
appellant’s conviction, I respectfully dissent.
Background
In 2003, the complainant was abducted by four men and sexually assaulted by
at least three men at gunpoint. During those assaults, the complainant was
2
See U.S. CONST. AMEND. VI; TEX. CONST. art. 1, §10. In his third issue, appellant
contends that the trial court erred in overruling his objection to certain portions of
the state’s closing argument. Due to my disposition of appellant’s first and second
issues, it is not necessary to address his third issue. See TEX. R. CIV. P. 47.1.
2
blindfolded and, therefore, unable to identify the men who abducted, sexually
assaulted, and then abandoned her in a soccer field late at night. There were no other
witnesses to the sexual assaults. As part of the law enforcement officers’
investigation, a vaginal swab was taken from the complainant along with two
“cuttings” from her underwear, believed to contain semen from some or all of her
assaulters. This evidence was sent to ReliaGene Technologies, Inc. (“ReliaGene”),
an independent laboratory outside of New Orleans, for processing of DNA evidence
and a report.
Before trial, appellant moved to exclude the DNA evidence processed by
ReliaGene, including a “Forensic Test Results” report from ReliaGene as well as
any testimony by Lloyd Halsell III, a DNA analyst who did not perform the DNA
testing for ReliaGene. Appellant asserted that use of the report and other evidence
concerning the DNA testing performed by ReliaGene would violate his Sixth
Amendment right to confrontation. The trial court held an evidentiary hearing on
appellant’s motion.
At the hearing, Halsell, an operations coordinator for the Houston Forensic
Science Center (“HFSC”), who is trained in DNA analysis, testified that in 2003,
when the complainant was sexually assaulted, the former Houston Police
Department Crime Lab (“HPD Crime Lab”) was not processing DNA evidence due
to quality-assurance issues. Thus, the DNA evidence collected after the
3
complainant’s 2003 sexual assaults was outsourced for processing to ReliaGene.
After processing the kit, ReliaGene issued a “Forensic Test Results” report that it
sent back to the former HPD Crime Lab.
Halsell further testified that, in 2017, HFSC received a DNA sample, also
called “a reference,” for appellant that it processed “in-house to generate a DNA
profile” for appellant that could be compared to “the work that was done by
Relia[G]ene.” Notably, neither Halsell nor anyone else at HFSC tested the DNA
evidence collected in 2003 following the aggravated sexual assault of the
complainant. Instead, Halsell relied on unknown analysts at ReliaGene in ultimately
concluding that appellant’s 2017 DNA sample or “reference” matched the DNA
evidence processed independently by ReliaGene in 2003. Halsell also explained that
the “Forensic Test Results” report contained the “same data” as Halsell’s own 2017
laboratory report, which states at the top: “previous analysis, Relia[G]ene
Technology Laboratory.” And although Halsell stated that he believed that his
report was “independent from” the Relia[G]ene report, he specifically noted that his
report was “based on the data that was used to generate” the ReliaGene “Forensic
Test Results” report.
Regarding ReliaGene’s procedures and protocols, Halsell testified that he
“was not involved with the . . . physical processing of the [DNA] evidence” sent to
ReliaGene in this case, he “never worked for Relia[G]ene,” and he was “never a part
4
of the [DNA] testing of th[e] materials” at ReliaGene or otherwise. He further
testified that his laboratory report was based on the data, DNA profile, and “Forensic
Test Results” report generated independently by ReliaGene, although he had no
knowledge of ReliaGene’s standards and protocols, or how ReliaGene’s DNA
testing was actually performed, and he did not supervise anyone at ReliaGene who
performed the DNA testing related to the complainant’s 2003 aggravated sexual
assault. Yet, when asked whether he could tell the trial court how ReliaGene’s data
was generated, Halsell responded:
[W]ell, as I said, my review would have been a review of their case file.
So, their extraction paperwork, their amplification paperwork, all of
their controls, I was able to say that the data they obtained was reliable
and sufficient that we can rely on it and use that data.
At the conclusion of the evidentiary hearing, the trial court excluded
ReliaGene’s “Forensic Test Results” report but it allowed Halsell to testify about all
of the DNA evidence, including data and analysis from the excluded ReliaGene
“Forensic Test Results” report. No witness from ReliaGene testified as to the DNA
testing it performed in this case.
At trial, no witness from ReliaGene testified as to the processing or testing of
the DNA evidence in this case. Instead, the State, through Halsell’s testimony,
introduced evidence about ReliaGene’s DNA processing and testing about which
Halsell previously admitted that he had no personal knowledge. For example,
5
Halsell testified regarding ReliaGene’s process for testing the DNA evidence in this
case as follows:
So, the process there is they would—I don’t know exactly how they
were instructed, in terms of what items to look at. But they would have
examined those items to then go through that process of what I was
talking about to initially screen it and then go through those extractions
and all of those steps to generate a DNA profile.
Halsell also testified that ReliaGene “worked the cases” that it received due to the
issues with the former HPD Crime Lab “together” and “in batches.” The HFSC
would then “review[] the data off of the CDs” it received from ReliaGene. In other
words, ReliaGene would have sent HFSC a “batch” of different DNA profiles from
multiple different people related to different cases. And in regard to the DNA
evidence in the instant case, when Halsell testified about the “chain of custody,” he
noted that the actual DNA evidence collected from the complainant would have been
sent back to the former HPD Crime Lab from ReliaGene in a box that had two
different cases with two different numbers. And when asked about the “sticky” note
on the box that referenced other case numbers, Halsell responded that he did not
“know what that note is referring to, whether it’s referring to the evidence, [or]
whether it’s referring to reports. I have no knowledge of that note and really have
not seen that before [that day at trial].”
Halsell further testified that despite “whatever happened with [the ReliaGene]
lab in New Orleans in 2004,” such as ‘whether there was an error or not an error,
6
there was a DNA profile that was generated.” However, he did not know “exactly
how [ReliaGene DNA analysts] were instructed, in terms of what to look at,” and he
had “no personal knowledge . . . of th[e] process that was done” at ReliaGene. And
Halsell confirmed that he had never worked at ReliaGene, he did not supervise
anyone there, he did not see “any of the machines” there or “know [ReliaGene’s]
protocols and the[] steps that” were taken with respect to the processing and testing
of the DNA evidence in the instant case.
Notably, despite Halsell’s unfamiliarity with ReliaGene, its processes,
procedures, protocols, personnel and chain-of-custody precautions, he based his
report and testimony linking appellant to the 2003 aggravated sexual assault of the
complainant on “the data that was generated by [ReliaGene’s] laboratory,” along
with ReliaGene’s “case file and all of their worksheets” and “computer data.”
Halsell confirmed that, assuming there was sufficient DNA evidence remaining after
ReliaGene’s testing, he could have re-tested the evidence himself—the screening,
extraction and analysis—but he did not do so. Instead, he testified that based on the
underwear “cuttings” that were independently processed by ReliaGene, “Wilber
Molina was not excluded as a possible contributor to the DNA” found on the garmet.
He further concluded that, from “the profile that [ReliaGene created and Halsell]
observed on the evidence, that if [he] were to look randomly at the
7
population . . . [he] would expect that [he] would have to look at 3.9 quadrillion
profiles to see that [same DNA] profile again.”
Confrontation Clause
In his first issue, appellant argues that the trial court erred in admitting the
testimony of Halsell based on DNA testing performed by others at an independent
out-of-state laboratory with which Halsell had no affiliation because, by doing so,
the trial court violated his right to confrontation. See U.S. CONST. Amend. VI; TEX.
CONST. art. 1, § 10.
We review a trial court’s decision to admit evidence for an abuse of discretion.
See Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006). A trial court
abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any
guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.
App. 1990). When considering a trial court’s decision to admit evidence, we will
not reverse the trial court’s ruling unless it falls outside the “zone of reasonable
disagreement.” Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996) (internal
quotations omitted).
A criminal defendant in the State of Texas has the right to be confronted with
the witnesses against him. See U.S. CONST. amend. VI (“In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.”); TEX. CONST. art I, § 10 (“In all criminal prosecutions the
8
accused shall be . . . . confronted by the witnesses against him[.]”). The
Confrontation Clause provides two types of protections for a criminal defendant: the
right physically to face those who testify against him and the right to conduct
cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987); see also
Crawford v. Washington, 541 U.S. 36, 42 (2004); Coy v. Iowa, 487 U.S. 1012, 1016
(1988) (Confrontation Clause “guarantees [a] defendant a face-to-face meeting with
witnesses appearing before the trier of fact”). And it bars admission of the
testimonial statements of a witness who does not appear at trial unless the witness is
unavailable to testify and the defendant has had a prior opportunity for
cross-examination. See Davis v. Washington, 547 U.S. 813, 821 (2006)
(citing Crawford, 541 U.S. at 53–54, (2004)). Whether a statement is testimonial or
nontestimonial is a question of law that we review de novo. Wall v. State, 184
S.W.3d 730, 742 (Tex. Crim. App. 2006).
The United States Supreme Court has declined to provide a “comprehensive
definition” of the term “testimonial.” Crawford, 541 U.S. at 68. However, in
Crawford, the landmark confrontation clause case, it explained that the confrontation
clause applied “at a minimum to prior testimony at a preliminary hearing, before a
grand jury, or at a former trial; and to police interrogations.” Id. The Court further
defined a core class of testimonial statements to include: (1) ex parte in-court
testimony, (2) affidavits, (3) depositions, (4) confessions, (5) custodial
9
examinations, and (6) statements made under circumstances that would lead an
objective witness reasonably to believe that the statement would be available for use
at a later trial.” Id. at 51–52.
Subsequent cases from the United States Supreme Court have continued to
explore what types of statements are considered “testimonial” in nature. In
Melendez-Diaz v. Massachusetts, the Supreme Court made clear that Crawford’s
rule reaches forensic evidence, which is not “uniquely immune from the risk of
manipulation.” 557 U.S. 305, 318 (2009). There, the Court held that admitting
certain notarized “certificates of analysis” showing the result of forensic testing and
stating that the substances seized from the criminal defendant contained cocaine,
without requiring any testimony from the analysts who performed the testing,
violated the defendant’s right to confrontation. See id. at 309–311. As the Court
explained, “certificates of analysis” had a clear evidentiary purpose, were made
under circumstances which would lead an objective witness reasonably to believe
that the “certificates of analysis” would be available for use at a later trial, and, thus,
they “f[ell] within the Clause’s ‘core class of testimonial statements.’” Id. at 310–
311 (quoting Crawford, 541 U.S. at 51–52). Further, the Court rejected the argument
that the Confrontation Clause should not apply to bar the admission of the
“certificates of analysis” because the “statements” in the certificates resulted from
“neutral scientific testing,” making them presumptively reliable. Id. at 318.
10
According to the Court, the Confrontation Clause requires reliability to be assessed
in a “particular manner,” namely, through “testing in the crucible of
cross-examination.” Id. at 317 (quoting Crawford, 541 U.S. at 61).
Then, in Bullcoming v. New Mexico, the Supreme Court held that a forensic
laboratory report was also testimonial and that the testimony explaining the report
from a witness who did not personally perform the forensic testing detailed in the
report violated the criminal defendant’s right to confrontation. 564 U.S. 647, 652
(2011). In that case, the state, at trial, introduced the results of the criminal
defendant’s blood alcohol testing through an analyst who was familiar with the
testing laboratory’s procedures, but who had not participated in and had not observed
the forensic testing of the defendant’s blood sample. Id. at 651. On appeal, the
question presented to the Court was “whether the Confrontation Clause permitt[ed]
the [state] to introduce a forensic laboratory report containing a testimonial
certification—made for the purpose of proving a particular fact—through the
in-court testimony of a scientist who did not sign the certification or perform or
observe the test reported in the certification.” Id. at 652. Significantly, the Court
determined that the State’s resort to the use of a “surrogate” witness, in place of the
analyst who created the forensic laboratory report, did not satisfy the Confrontation
Clause. Id. And, the criminal defendant had a “right . . . to be confronted with the
analyst who [completed the testing], unless that analyst [was] unavailable at trial,
11
and the [defendant] had an opportunity, pretrial, to cross-examine that particular
scientist.” Id.
Most recently, in Williams v. Illinois, the Supreme Court issued a plurality
opinion, regarding certain testimony concerning DNA evidence in circumstances
similar to the ones present in this case. See 567 U.S. 50, 55–141 (2012). At the very
least, the Court’s struggle to resolve the same issue we face in this case confirms the
seriousness of the matters at stake.
In Williams, the complainant “was abducted while she was walking home
from work.” Id. at 59. The perpetrator then sexually assaulted her, robbed her, and
left her “in[] the street.” Id. At the hospital, doctors “took a blood sample and
vaginal swabs.” Id. In linking the criminal defendant to the sexual assault of the
complainant, the State relied on a “DNA profile produced by an outside laboratory.”
Id. at 56. Specifically, the State called a witness to testify about the DNA generated
by another laboratory at which the witness did not work or ever “set foot” inside. Id.
at 56, 60–62; see also id. at 125 (Kagan, J., dissenting). The witness also revealed
that she did not conduct or observe any of the forensic testing that created the DNA
profile, which she then “matched” to the criminal defendant. Id. at 62.
Significantly, four of the Justices dissented in Williams, concluding that the
testimony at issue constituted “surrogate testimony” like the testimony of the witness
who did not actually perform the forensic testing in Bullcoming, and should have
12
been excluded for a violation of the criminal defendant’s right to confrontation. See
id. at 118–141 (Kagan, J., dissenting). Writing for the dissent, Justice Kagan
explained the dangers of allowing evidence of a forensic laboratory report to come
in through a “surrogate witness” because the witness “could not convey what [the
actual analyst who completed the testing of the DNA evidence] knew or observed
about the events . . . , i.e., the particular test and testing process he employed,” “[n]or
could such surrogate testimony expose any lapses or lies” on the forensic testing
analyst’s part. Id. at 124 (Kagan, J., dissenting) (first and second alterations in
original) (emphasis omitted). “Like the lawyers in Melendez-Diaz and Bullcoming,
Williams’s attorney could not ask questions about that analyst’s proficiency, the care
he took in performing his work, and his veracity.” Id. at 123 (Kagan, J., dissenting)
(internal quotations omitted). Importantly, “[h]e could not probe whether the analyst
had tested the wrong vial, inverted the labels on the samples, committed some more
technical error, or simply made up the results.” Id. at 125 (Kagan, J., dissenting).
The dissenting Justices noted that “[a]t least the surrogate witness in Bullcoming
worked at the relevant laboratory and was familiar with its procedures,” which was
not true for the surrogate witness in Williams. Id. (Kagan, J., dissenting).
Significantly, the dissent reiterated, as the Supreme Court had emphasized in
Melendez-Diaz, that “in response to claims of the über alles reliability of scientific
evidence: [i]t is not up to [the court] to decide, ex ante, what evidence is trustworthy
13
and what is not” because “the Confrontation Clause prescribes its own ‘procedure
for determining the reliability of testimony in criminal trials,’” namely,
“cross-examination.” Id. at 138 (quoting Crawford, 541 U.S. at 67). Dispensing
with cross-examination “because testimony is obviously reliable is akin to
dispensing with jury trial because a [criminal] defendant is obviously guilty.” Id.
(quoting Crawford, 541 U.S. at 67). This should not be a stance supported by the
Court.
The United States Supreme Court is not the only court to address a criminal
defendant’s right to confrontation in circumstances similar to the instant case. Most
notably, in Burch v. State, the Texas Court of Criminal Appeals, relying on the
Supreme Court’s analysis in Bullcoming, disapproved of the admission of a
laboratory report without the criminal defendant being able to cross-examine the
analyst who tested a substance contained in a ziplock bag found on the defendant.
401 S.W.3d 634, 640 (Tex. Crim. App. App. 2013). Instead, the State offered as its
witness an analyst who did not do any “testing,” but simply “review[ed]” the work
done. Id. at 635–36. On appeal, the Dallas Court of Appeals held that the trial court
erred in admitting the laboratory report and the “reviewer” analyst’s testimony that
the substance found on the criminal defendant was cocaine. Id. And the Texas Court
of Criminal Appeals agreed, noting that although “the testifying witness[, the
reviewing analyst,] was a supervisor who ‘reviewed’ the original process, [the Court
14
could not] say, on th[e] record, that [the witness] had personal knowledge that the
tests were done correctly or that the tester did not fabricate the results.” Id. at 637.
Accordingly, it was error to admit the laboratory report, which contained testimonial
statements, and the reviewing analyst’s testimony about the results of testing that
she did not complete and who could not verify the authenticity of the statements. Id.
Stated differently, the Court held that the admission of the laboratory report and the
reviewing analyst’s testimony violated the criminal defendant’s right to
confrontation. Id. at 637–38 (“Without having the testimony of the analyst who
actually performed the tests, or at least one who observed their execution, the
defendant has no way to explore the types of corruption and missteps the
Confrontation Clause was designed to protect against.”). As the Court explained,
the “State cannot sidestep the Sixth Amendment” by creative wordsmithing. Id. at
639.
In an about-face two years later, the Court in Paredes v. State, when faced
with the same Confrontation Clause dilemma as in Burch, determined that the
criminal defendant’s right to confrontation was not violated. See 462 S.W.3d 510,
519 (Tex. Crim. App. 2015). Inexplicably, the Court distinguished Paredes from
Burch, on the basis that the State, in Burch, “called the testing analyst’s supervisor
who signed the lab report but had not performed or observed any testing.” Id. at
518. In other words, the laboratory reports admitted into evidence in Burch
15
contained testimonial statements that were admitted “through the expert testimony
of a [surrogate witness] who did not make th[e] statements and could not verify the
authenticity of th[e] statements.” Id. In contrast, according to the Court, in Paredes,
the testifying witness was a supervisor in the laboratory where the forensic testing
took place, she “performed the crucial analysis determining the DNA match,” she
“testified to her own conclusions,” she “testified about the safety measures in place”
at the lab to detect errors and the laboratory reports she relied on to reach her
conclusions “were not offered into evidence.” Id. at 512, 518. Further, because the
witness relied on “non-testimonial information—computer-generated DNA data—
to form [her] independent, testimonial opinion and [the defendant] was given the
opportunity to cross-examine her about her analysis,” the Court held that the
testifying witness in Paredes was “more than a surrogate for a non-testifying
analyst’s report.” Id. at 518–19.
Here, the majority opinion errs in relying on Paredes and in extending its
holding to apply to the facts of this case. In Paredes, the Court could not have
reached its conclusion but for the other factors weighing in favor of the testifying
witness’s reliability. As the Court clearly explained, “more importantly, [the
witness] testified about the safety measures in place at [the laboratory] to
detect . . . errors and stated that, if part of the analysis were done improperly, the
16
laboratory procedure would not generate an incorrect DNA profile.”3 Id. In other
words, the testifying witness in Paredes had a distinct level of first-hand knowledge
due to working in the same laboratory as the other analysts who participated in
generating the inculpatory DNA profile. And she was testifying as “more than a
surrogate” because she actually performed “the crucial analysis” and merely relied
on another analyst’s “computer-generated data in reaching her conclusion rather than
another analyst’s report.” Id. (emphasis added) (explaining “not a case in which the
State attempted to bring in a testimonial lab report through a surrogate [witness]”);
see also Garret v. State, 518 S.W.3d 546, 554–55 (Tex. App.—Houston [1st Dist.]
2017) (testifying analyst performed analysis and comparison of criminal defendant’s
DNA profile and DNA profile obtained from scene; all testing and analysis took
place at HFSC laboratory; testifying analyst testified about work completed by other
analysts in laboratory where he also worked but also that he performed actual
analysis and interpretation leading to his laboratory report confirming results).
Not so here. In our case, Halsell had no personal knowledge about
ReliaGene’s analysts or their processes and procedures, although he was allowed to
testify as if he did. And, contrary to the testifying witness in Paredes, it is undisputed
that Halsell did not just rely on raw computer-generated data from ReliaGene in
3
Instead, the forensic DNA testing would have “yield[ed] no result at all[,] rather
than an improper result.” Paredes v. State, 462 S.W.3d 510, 518 (Tex. Crim. App.
2015).
17
order to reach his conclusion which linked appellant to the complainant’s 2003
aggravated sexual assault in this case. Instead, he testified unequivocally that he
relied on “[n]ot only . . . [ReliaGene’s “Forensic Test Results”] report,
but . . . also . . . the data that was generated by [ReliaGene’s] laboratory.” Halsell
explained that he took ReliaGene’s “case file,” “worksheets,” and “computer data”
to perform his analysis. And the unknown analyst at ReliaGene “extracted,
quantified, amplified, did all these steps in the process in order to create a DNA
profile” that Halsell then “used as part of [his] analysis.” Halsell’s conclusions are
dependent on more than just ReliaGene’s “computer-generated data.” His
conclusions are dependent on a non-testifying analyst’s report and testimonial
statements.
The majority opinion seizes on the language in Paredes,4 that
“computer[-]generated DNA data is not testimonial” and “is not subject to the
Confrontation Clause’s cross-examination requirement” to justify its holding. See
Paredes, 462 S.W.3d at 518–19. In doing so, the majority opinion ignores a
significant portion of the Court of Criminal Appeals’ reasoning in Paredes, namely
that the testifying witness “did not introduce or testify regarding a formal report or
4
The same language is found in our previous opinion in Garrett v. State, 518 S.W.3d
546, 555 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (“The raw DNA profiles
‘are not the functional equivalent of live, in-court testimony because they did not
come from a witness capable of being cross-examined. They com from a
computer.’” (quoting Paredes, 462 S.W.3d at 518)).
18
assertion from a non-testifying analyst.” Id. at 519. Accordingly, the majority
opinion is incorrect in stating that the DNA evidence at issue in this instant case is
merely “computer-generated data on which Halsell relied for his opinion” and, thus,
not testimonial and does not violate appellant’s right to confrontation. This
conclusion is completely contrary to Halsell’s own testimony that, in reaching his
opinion, he relied on the analysis and “Forensic Test Results” report issued by
ReliaGene and about which he had no knowledge.
Scarier yet, Halsell’s testimony in this case lacks any assurances of reliability
that existed in Paredes. For instance, we do not know how that “raw
computer-generated data” the majority opinion finds so compelling was obtained
because there was no one available for appellant to cross-examine or confront.5 And
when the State introduced the substance of ReliaGene’s “Forensic Test Results”
report into evidence through Halsell’s testimony, the analyst who actually tested the
5
This problem is apparent due to the jury’s confusion surrounding Halsell’s
testimony. During deliberations, the jury requested “the documentation of the
evidence of the DNA.” The jurors’s disagreement over the “DNA numbers” led
them to request “the testimony of the DNA expert on the analysis of the DNA.”
19
DNA evidence and generated that report became a witness, just like Halsell.6
Accordingly, appellant had the right to confront that ReliaGene analyst, too.7
To be sure, the record in this case—Halsell’s own testimony—contradicts the
majority opinion’s skewed depiction of this case. Here, we are faced with the same
6
There is no basis for admitting Halsell’s testimony concerning ReliaGene’s
“Forensic Test Results” report and analysis on a basis other than for the truth of the
matter asserted. As summarized in Justice Kagan’s dissent in Williams v. Illinois:
The plurality’s primary argument to the contrary tries to exploit a limit
to the Confrontation Clause recognized in Crawford. “The Clause,”
we cautioned there, “does not bar the use of testimonial statements for
purposes other than establishing the truth of the matter asserted.” The
Illinois Supreme Court relied on that statement in concluding that [the
surrogate witness’s] testimony was permissible. On that Court’s
view, “[the surrogate witness] disclosed the underlying facts from [the
outside laboratory’s] report” not for their truth, but “for the limited
purpose of explaining the basis for her [expert] opinion,” so that the
factfinder could assess that opinion’s value. The plurality wraps itself
in that holding, similarly asserting that [the surrogate witness’s]
recitation of [the outside laboratory’s] findings, when viewed through
the prism of state evidence law, was not introduced to establish “the
truth of any . . . matter concerning [the outside laboratory’s]” report.
But five Justices agree, in two opinions reciting the same reasons, that
this argument has no merit: [the surrogate witness’s] statements about
[the outside laboratory’s] report went to its truth, and the State could
not rely on her status as an expert to circumvent the Confrontation
Clause’s requirements.
567 U.S. at 125–26 (Kagan, J., dissenting) (internal citations omitted).
7
As if that weren’t enough, at the time the DNA evidence was outsourced to
ReliaGene in 2003, the former HPD Crime Lab had been shut down for failure to
meet quality standards. Halsell testified about the doubt surrounding the quality of
work being generated at the HPD Crime Lab and the questions about the integrity
of storage of evidence there. Why, under these circumstances, would the State, in
a cold case based solely on DNA evidence, be allowed to use a “surrogate witness”
for the most critical evidence linking appellant to the sexual assault of the
complainant? Cold Case, BLACK’S LAW DICTIONARY (11th ed. 2019).
20
circumstances as in Bullcoming and Burch. Halsell is not “more than a surrogate,”
he is actually a surrogate for a non-testifying analyst’s testimonial statements and
forensic report and the majority errs in holding otherwise. See Bullcoming, 564 U.S.
at 661–65 (“[T]his violated the Confrontation Clause because the testing analyst’s
laboratory report was testimonial and it could not be admitted into evidence through
the ‘surrogate testimony’ of another analyst.” (internal citations omitted)); Burch,
401 S.W.3d at 640 (“Although the State did call the reviewing analyst at trial, that
witness did not have personal knowledge of the testimonial facts being submitted.
Consequently, she was not an appropriate surrogate witness for
cross-examination.”). Further, the fact that the trial court excluded ReliaGene’s
“Forensic Test Results” report is immaterial because Halsell made it clear that his
testimony and his own report and conclusions were reliant upon ReliaGene’s
independently generated work product—not merely raw computer-generated data.
Halsell did not limit his testimony to confirming that the two DNA profiles matched
each other. Rather, Halsell testified that ReliaGene took certain steps and used
certain processes to generate a DNA profile from the DNA evidence provided to it.
He certified that the analysis performed by an unknown ReliaGene analyst was
accurate despite his admitted lack of personal knowledge of ReliaGene’s procedures
and processes.
21
“Scientific testing is ‘technical,’ to be sure . . . , but it is only as reliable as the
people who perform it.” Williams, 567 U.S. at 137 (Kagan, J., dissenting). “That is
why a defendant may wish to ask the analyst a variety of questions: How much
experience do you have? Have you ever made mistakes in the past? Did you test
the right sample? Use the right Procedures? Contaminate the sample in any way?”
Id. (Kagan, J., dissenting).
As the Supreme Court has frequently said, the criminal defendant’s right to
confrontation “[i]s a fundamental right essential to a fair trial.” Pointer v. Texas,
380 U.S. 400, 404 (1965). And courts must be willing to act zealously to protect the
right from erosion. Greene v. McElroy, 360 U.S. 474, 496–97 (1959); see also
Barber v. Page, 390 U.S. 719, 725 (1968) (“The right of confrontation may not be
dispensed with so lightly.”). When the right to confrontation is denied or
significantly diminished, “the ultimate integrity of the fact-finding process” is called
into question. Chambers v. Mississippi, 410 U.S. 284, 295 (1973) (internal
quotations omitted); see also Pointer, 380 U.S. at 404 (right of confrontation
necessary to “expos[e] falsehoods and bring[] out the truth in the trial of a criminal
case”).
For these reasons, I would hold that the trial court erred in admitting the
testimony of Halsell regarding the DNA evidence in this case because, by doing so,
the trial court violated appellant’s right to confrontation. I would further hold that
22
the erroneous admission of Halsell’s testimony harmed appellant. See TEX. R. APP.
P. 44.2(a). And I would sustain appellant’s first issue.
Sufficiency of the Evidence
In his second issue, appellant argues that the evidence was legally insufficient
to support his conviction because there is “a complete lack of evidence, other than
the improperly admitted testimony of . . . Halsell . . . to connect [a]ppellant to
the . . . [aggravated] sexual assault of [the complainant].”
We review the legal sufficiency of the evidence by considering all the
evidence in the light most favorable to the jury’s verdict to determine whether any
“rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due process
safeguard, ensuring only the rationality of the trier of fact’s finding of the essential
elements of the offense beyond a reasonable doubt. See Moreno v. State, 755
S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference to the responsibility
of the fact finder to fairly resolve conflicts in testimony, weigh evidence, and draw
reasonable inferences from the facts. Williams, 235 S.W.3d at 750. However, our
duty requires us to “ensure that the evidence presented actually supports a conclusion
that the defendant committed” the criminal offense of which he is accused. Id.
23
A person commits the offense of aggravated sexual assault if he intentionally
or knowingly causes the sexual organ of another person, without that person’s
consent, to contact the sexual organ of another person, including him, and he uses or
exhibits a deadly weapon in the course of the same criminal episode. TEX. PENAL
CODE ANN. § 22.021(a)(1)(A)(iii), (a)(2)(A)(iv). In this case, the only evidence
presented at trial linking appellant to the aggravated sexual assault of the
complainant was the erroneously admitted testimony of Halsell at trial. Without the
DNA evidence from Halsell indicating that appellant could not be excluded as a
DNA contributor in this case, the jury would only have heard the testimony of the
complainant and two other witnesses—none of whom were able to identify appellant
as the perpetrator of the aggravated sexual assault. Cf. Jensen v. State, 66 S.W.3d
528, 534 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (holding complainant’s
testimony defendant was person who sexually assaulted her sufficient to support
conviction).
Thus, viewing the evidence in the light most favorable to the jury verdict, a
rational juror could not conclude, beyond a reasonable doubt, that appellant
committed the offense of aggravated sexual assault. See TEX. PENAL CODE ANN.
§ 22.021(a)(1)(A)(iii), (a)(2)(A)(iv); Jackson, 443 U.S. at 318–19; Williams, 235
S.W.3d at 750. And I would hold that there is legally insufficient evidence to support
appellant’s conviction and sustain appellant’s second issue.
24
Accordingly, I would reverse the judgment of the trial court and render a
judgment of acquittal. See Verduzco v. State, 24 S.W.3d 384, 386 (Tex. App.—
Houston [1st Dist.] 2000, no pet.). Because the majority opinion does not, I
respectfully dissent.
Julie Countiss
Justice
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.
Countiss, J., dissenting.
Publish. TEX. R. APP. P. 47.2(b).
25