Opinion
14-19-00839-CR
06-08-2021
ALAN WILLIAM NULL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court Harris County, Texas Trial Court Cause No. 1443617
Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
MAJORITY OPINION
Tracy Christopher Chief Justice
Eleven issues are presented in this appeal from a conviction for sexual assault of a child. For the reasons given below, we overrule each issue and affirm the trial court's judgment.
BACKGROUND
The complainant, a sixteen-year-old girl, came home in a confused state early one morning and told her mother that she had just been raped. The mother took the complainant to the hospital, where the complainant was examined by a nurse who specializes in sexual assaults.
The complainant told the nurse that she went out for a jog and was then stopped by a man in a car who had offered her a ride home. The complainant said that she got in the car because the man had sweet-talked her, but rather than take her home, the man drove her to a park, where he used a switchblade to forcibly have sex with her.
After leaving the hospital, the complainant revealed that the jogging story was false. She said that what really happened was that she had skipped school because she was upset over a break up, and she stayed home to drink alcohol while her mother was away at work. She later contacted an adult female friend to join her, and the friend came over to the complainant's house, where they drank more alcohol together.
Before the complainant's mother returned home from work, the friend drove the complainant to her own house, which was less than two miles away. The complainant became intoxicated there and passed out. When she woke up, the hour was late and the friend was asleep. Because the complainant was frantic to get home, she decided to walk home by herself.
The complainant claimed that she blacked out on her walk home and that she woke up in an unfamiliar car with someone pressing on top of her. She did not get a good look at the other person and she did not remember much about the incident at all.
A toxicology report showed that the complainant had Xanax and marijuana in her system. Additional forensic analysis found semen in her vagina and underwear.
A few years after the semen sample was collected, appellant was identified as a possible suspect in the sexual assault. Appellant, who was nearly thirty-eight years old at the time of the sexual assault, consented to providing a buccal swab, and based on a test of that buccal swab, a DNA analyst determined that appellant could not be excluded as a contributor of the semen sample that had been collected from the complainant.
Appellant was charged with the complainant's sexual assault. He pleaded not guilty to that charge and his case proceeded to a trial by jury. During the trial, the complainant testified that she did not know anyone by appellant's name and that she never even socialized with men in appellant's age group. She reiterated that she could not remember much about the night in question, and she did not identify appellant in open court as her attacker.
Appellant did not testify in his own defense. Instead, his counsel assailed the prosecution for what he regarded as a "shameful investigation." Counsel emphasized that the complainant had been receiving medical treatment for herpes, which is a highly communicable disease, but the prosecution never ordered any sort of testing to determine whether appellant had similarly been infected with herpes. Counsel argued that this failure amounted to reasonable doubt.
Counsel also criticized the prosecution for not interviewing the complainant's adult female friend, or any of the friend's other acquaintances who may have been at her house on the night in question. Counsel suggested that appellant may have had consensual intercourse with the friend, and that his DNA was found on the complainant because the complainant was wearing the friend's clothes.
The jury rejected these defensive arguments and convicted appellant as charged.
SUFFICIENCY OF THE EVIDENCE (Issue Four)
We take appellant's issues out of order and begin with his sufficiency challenge because, if meritorious, it would afford greater relief than his other issues. See Roberson v. State, 810 S.W.2d 224, 225 (Tex. Crim. App. 1991) (per curiam) (indicating that rendition points should be addressed before remand points).
In a sufficiency challenge, a reviewing court must determine whether a rational trier of fact could have found the essential elements of an offense beyond a reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). The offense here was sexual assault of a child, which meant that the prosecution had the burden of proving the following essential elements: (1) appellant intentionally or knowingly caused the penetration of the complainant's sexual organ, and (2) the complainant was younger than seventeen years of age at the time of the penetration. See Tex. Penal Code § 22.011(a)(2)(A), (c)(1). When deciding whether the prosecution satisfied this burden, we consider all of the evidence in the light most favorable to the verdict. See Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018).
The jury could have reasonably found that appellant intentionally or knowingly penetrated the complainant's sexual organ because there was evidence that his semen was collected from the complainant's vaginal swab. The jury could have likewise determined that the complainant was younger than seventeen years of age at the time of the offense because her mother testified that the complainant was sixteen when the incident happened.
Appellant counters that the evidence of penetration is insufficient because the in-court testimony from the complainant "is completely devoid of any sexual act." Appellant correctly observes that the complainant testified during the trial that she did not remember much about the incident. Indeed, she did not provide many details at all about the sexual assault. However, just after the assault occurred, the complainant told her mother that she had been raped, and the mother repeated that statement in front of the jury. Also, the complainant told the sexual assault nurse examiner that the man who attacked her had "put his penis in her vagina." That statement was recorded in the nurse's notes, which were admitted for the jury's consideration. Together, these statements provided the jury with a substantial basis for finding that penetration occurred.
Based on the foregoing, we conclude that there was legally sufficient evidence from which the jury could have found every essential element of the offense beyond a reasonable doubt.
VENUE (Issue Five)
The evidence established that the complainant lived in the city of Jersey Village, which is located within Harris County, and that her adult female friend lived less than two miles to the east of her in the city of Houston. The evidence did not establish where the sexual assault occurred, and absent such evidence, appellant argues that the prosecution failed to prove that venue was proper in Harris County.
Venue is not an element of the offense, which means that the prosecution is not required to prove it beyond a reasonable doubt. See Schmutz v. State, 440 S.W.3d 29, 34 (Tex. Crim. App. 2014). The prosecution must only establish that venue is proper by a preponderance of the evidence. See Tex. Code Crim. Proc. art. 13.17. We presume that the prosecution satisfied that burden unless venue was disputed in the trial court or the record affirmatively shows that venue was improper. See Tex. R. App. P. 44.2(c)(1).
Appellant did not dispute venue during the trial, and he concedes on appeal that he did not produce any evidence affirmatively showing that venue would have been proper in a different county. Therefore, we presume on this record that the prosecution satisfied its burden of showing by a preponderance of the evidence that the proper venue was in Harris County.
SPOUSE (Issue Six)
The prosecution alleged in both the indictment and the jury charge that appellant was not the complainant's spouse. Appellant correctly observes that his marital relationship was not an element of the offense. Marital relationship relates instead to an affirmative defense. See Tex. Penal Code § 22.011(e)(1). Appellant did not claim that defense in this case, but he argues that the prosecution had the burden to prove what it had pleaded-i.e., that appellant was not the complainant's spouse. And as to that point, appellant argues that the evidence is legally insufficient.
This argument fails for two reasons. First, in a sufficiency challenge, we assess the evidence against the essential elements of the offense, not against an erroneously heightened command in the jury charge. See Ramjattansingh v. State, 548 S.W.3d 540, 546 (Tex. Crim. App. 2018). Thus, the prosecution was not required to prove that appellant was not the complainant's spouse.
And second, even if we assumed for the sake of argument that the prosecution had the burden of proving that appellant was not the complainant's spouse, there was testimony directly from the complainant that she did not know anyone by appellant's name and that she did not associate with men in his age group. The jury could have reasonably inferred from that testimony that she did not know appellant and that they were not married to each other.
REMOVAL OF JURORS (Issues One and Two)
The voir dire in this case spanned two days and required two separate venire panels. After the first day, a partial jury of eleven jurors was seated. Soon after being seated, one of these eleven jurors approached the bench and informed the trial court that she was not fluent in English. When the trial court inquired how much English she understood, she responded as follows: "Well, some words, I can understand. I tell them to tell you I can't speak English that good because I don't know if it would be fair to sometimes-some words I can understand, some words not." The trial court excused this juror sua sponte, over appellant's objection that the juror could actually understand English.
On the second day of voir dire, another juror from the original eleven came forward to also say that he was not fluent in English. He told the trial court, "Yeah, well my problem is I don't consider to speak much English. I don't understand everything they say and the thing is I don't get everything what they say and I don't know if I could." The trial court excused this juror sua sponte as well, over appellant's objection that the juror was qualified.
Appellant now complains in two related issues that the trial court abused its discretion by removing both of these jurors without a corresponding motion from the prosecution.
Appellant correctly observes that "a trial court should not on its own motion excuse a prospective juror for cause unless the juror is absolutely disqualified from serving on a jury." See Johnson v. State, No. AP-77, 030, 2015 WL 7354609, at *12 (Tex. Crim. App. Nov. 18, 2015) (not designated for publication) (citing Martinez v. State, 621 S.W.2d 797, 798 (Tex. Crim. App. 1981)); see also Tex. Code Crim. Proc. art. 35.19 (providing that a person is absolutely disqualified from serving on a jury if he has been convicted of misdemeanor theft or a felony, if he is presently charged with misdemeanor theft or a felony, or if he is insane). However, appellant did not preserve error on this basis. Appellant argued that both jurors should remain on the jury because they understood English. On neither occasion did he object that the trial court was improperly excusing the juror on its own motion.
Even if we assumed for the sake of argument that error had been preserved, appellant cannot show that he was harmed. The trial court determined that both jurors were excludable for cause because they did not fully understand English. See Tex. Code Crim. Proc. art. 35.16(a)(11) (providing that a juror may be challenged for cause if "the juror cannot read or write"); Montoya v. State, 810 S.W.2d 160, 170 (Tex. Crim. App. 1989) (applying Article 35.16(a)(11) to a prospective juror who expressed difficulty understanding spoken English). When a trial court excludes a disqualified juror for cause on its own motion, the error in acting sua sponte is considered harmless unless the defendant shows that he was tried by a jury to which he had a legitimate objection. See Montoya, 810 S.W.2d at 170. Appellant has not identified any objections to the final jury that was seated in this case. Therefore, we conclude that any error in the removal of the two jurors was harmless.
THE ENVELOPE (Issue Three)
Appellant's buccal swabs were stored in an envelope that had several markings on it. These markings indicated that the buccal swabs were collected as evidence in an extraneous sexual assault that appellant committed one year after the charged offense against the complainant.
Outside the presence of the jury, and before the buccal swabs were ever admitted into evidence, the trial court commented that the markings were highly prejudicial. To avoid exposing appellant to that unfair prejudice, the trial court determined that it would admit the envelope and the buccal swabs (assuming the proper predicate had been established), but not send either of them back to the jury during deliberations. In the event that the jury asked to see the envelope or the buccal swabs, the trial court ruled "we will then deal with it then."
Later, when the trial resumed and the buccal swabs were offered into evidence, appellant objected to the admission of the envelope on the basis of the prejudicial markings. The trial court overruled that objection. Appellant now challenges that ruling.
For the sake of argument, we will assume without deciding that the trial court erred by admitting the envelope. The question then becomes whether the admission was reversible under the standard for nonconstitutional error.
Nonconstitutional error must be disregarded unless it affects a defendant's substantial rights. See Tex. R. App. P. 44.2(b). An error affects a defendant's substantial rights when the error has a substantial and injurious effect or influence on the jury's verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If the error had no influence or only a slight effect on the verdict, then the error is harmless. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
There is no indication that the jury ever saw the envelope. It was not published during the trial. And during deliberations, after the jury submitted a note requesting "to see all evidence as entered into court," the trial court issued the following response: "The Court is sending all of the evidence, absent the biological material. If you want to inspect it, please ask to inspect it." That response was consistent with the trial court's earlier ruling that it would not send the envelope back to the jury unless the jury specifically asked to inspect it. The record does not reveal that the jury ever replied with an additional request to inspect the envelope.
Because the record does not show that the jury ever saw the envelope and its prejudicial markings, we conclude that any error in the admission of the envelope had no influence on the jury's verdict, and therefore, the trial court's ruling was harmless.
LESSER-INCLUDED OFFENSE (Issue Seven)
During the charge conference, appellant requested an instruction on the lesser-included offense of attempted sexual assault of a child. The trial court refused the request, and appellant now challenges that refusal.
A trial court reversibly errs by denying a requested instruction for a lesser-included offense if (1) the lesser offense is included within the proof required of the charged offense, and (2) there is some evidence from which a rational jury could acquit the defendant of the charged offense while convicting him of the lesser offense. See Segundo v. State, 270 S.W.3d 79, 90-91 (Tex. Crim. App. 2008).
Appellant has satisfied the first prong of this error analysis because an attempt is always included within the proof required of the charged offense. See Tex. Code Crim. Proc. art. 37.09(4).
To satisfy the second prong, there must be affirmative evidence that both raises the lesser-included offense and rebuts or negates an element of the charged offense. See Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012). In other words, the evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense. See Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000). It is not enough that the jury may disbelieve crucial evidence pertaining to the charged offense. See Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997).
Appellant believes that evidence of the lesser-included offense was raised by testimony from the sexual assault nurse examiner. He refers to two portions of the nurse's testimony, both arising out of her cross-examination. In the first portion, the nurse testified that seminal fluid can migrate from one place to another, meaning that the location of its discovery is not necessarily the same location of its original deposit. In the second portion, the nurse testified that she did not find any injuries on the complainant that were indicative of sexual assault. Based on these two lines of testimony, appellant suggests that the jury could have rationally found that his seminal fluid made contact with the complainant by a means other than penetration, such as an attempt. We disagree.
The nurse's testimony does not constitute affirmative evidence that appellant attempted, but failed, to penetrate the complainant's sexual organ. The testimony merely established that the nurse could not be completely certain whether the seminal fluid that was collected from the complainant was the product of a sexual assault. The nurse's uncertainty could have provided a basis for the jury to disbelieve crucial evidence pertaining to the charged offense, but her uncertainty did not raise affirmative evidence for purposes of the lesser-included offense. See Massey v. State, 933 S.W.2d 141, 155 (Tex. Crim. App. 1996) ("That a witness agrees that anything is possible and that he cannot be 100 percent certain of anything does not raise evidence for purposes of a lesser included offense."), superseded on other grounds by statute as stated in Watkins v. State, 619 S.W.3d 265, 287-88 (Tex. Crim. App. 2021); cf. Penaloza v. State, 349 S.W.3d 709, 712-13 (Tex. App.-Houston [14th Dist.] 2011, pet. ref'd) (holding in an aggravated robbery case that a witness's testimony that she was uncertain as to whether the defendant had used a real gun or a toy gun did not raise affirmative evidence that a deadly weapon was not used, which was necessary to support the submission of the lesser-included offense of robbery).
RULE 702 (Issues Eight and Nine)
The prosecution gave advance notice that it intended to introduce evidence of an extraneous sexual assault during the punishment phase of trial. Appellant filed a written objection to this evidence before the punishment phase began.
In the written objection, appellant represented that the prosecution had sent a rape kit from the extraneous sexual assault to Bode Technology, which is a lab in another state. Bode extracted male DNA from the extraneous rape kit, but Bode did not compare that DNA to a known sample collected from appellant. Instead, Bode submitted a report with the DNA profile to the prosecution. Using that report and a buccal swab from appellant, a comparative analysis was then completed by Mary Symonds, a DNA analyst from the Houston Forensic Science Center. Symonds determined that appellant could not be excluded as a contributor of the DNA from the rape kit.
Appellant objected primarily on confrontation grounds because the prosecution did not identify anyone from Bode on its witness list. Instead, the prosecution listed Symonds, and appellant objected that her testimony would be unreliable under Rule 702 of the Texas Rules of Evidence because Symonds had no knowledge of how Bode conducted its testing, of whether the Bode analyst was qualified to administer the test, or of whether the Bode analyst administered the test correctly.
Appellant reiterated these objections just before Symonds took the stand. Without hearing any evidence outside the presence of the jury, the trial court overruled the objections and gave appellant a running objection. Now in two related issues, appellant challenges the trial court's ruling and the admission of Symonds's testimony. He limits his challenge to just Rule 702 and does not re-urge his argument under the Confrontation Clause.
Rule 702 provides that a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. Expert testimony that is proffered under this rule is not probative and relevant unless it is also reliable. See Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). If the proffered expert testimony is derived from a scientific theory, the testimony is reliable if it satisfies the following three criteria: (1) the underlying scientific theory is valid, (2) the technique applying the theory is valid, and (3) the technique was properly applied on the occasion in question. Id. at 573.
Appellant argues that the prosecution failed to establish each of these criteria. Beginning with the first criterion, appellant notes that Symonds gave no testimony regarding the validity of DNA testing. Appellant did not raise this complaint with a specific objection in the trial court, but even if he had, his argument would fail because the trial court was allowed to take judicial notice that DNA testing has already been widely accepted by other courts. See Hernandez v. State, 116 S.W.3d 26, 29 (Tex. Crim. App. 2003) (per curiam) ("Once a scientific principle is generally accepted in the pertinent professional community and has been accepted in a sufficient number of trial courts through adversarial Daubert/Kelly hearings, subsequent courts may take judicial notice of the scientific validity (or invalidity) of that scientific theory based upon the process, materials, and evidence produced in those prior hearings."); see also Maryland v. King, 569 U.S. 435, 442 (2013) (recognizing the significance of DNA technology).
In his next point, appellant argues that the prosecution similarly failed to establish the second criterion, which addresses the validity of the technique applying the scientific theory. This point was not raised in the trial court either. In any event, the technique employed in this case was "STR," or short tandem repeats, and the trial court was free to take judicial notice that this technique is also valid. See Reese v. State, Nos. 14-02-00847-CR & 14-02-00848-CR, 2003 WL 22303760, at *2-3 (Tex. App.-Houston [14th Dist.] Oct. 9, 2003, pet. ref'd) (mem. op., not designated for publication) (discussing evidence developed at a hearing concerning short tandem repeats, including "world-wide acceptance of STR DNA testing").
As for his final point, appellant argues that the prosecution failed to prove that Bode applied the technique properly. Appellant preserved this argument, but it still must fail because the prosecution produced evidence pertinent to the third criterion. Symonds testified that Bode was an accredited lab, and that based on certain on-site visits, a review of its operating procedures, and its history of compliance, Bode was outsourced to assist in clearing a backlog of untested rape kits. As for the testing in this particular case, Symonds said that she was not physically present at Bode when the testing occurred, but she went through a checklist to ensure that Bode followed the necessary steps to establishing a DNA profile. She confirmed that all quality control signatures were in place and that Bode's results stayed within acceptable ranges.
Appellant did not produce any affirmative evidence showing that Bode's application of the technique was incorrect. Instead, appellant merely elicited testimony that Symonds had no personal knowledge of certain issues, such as whether Bode's instruments were properly calibrated, or whether the Bode analyst who performed the test was qualified. But Symonds had other reasons to believe that Bode's application was reliable, and her expert opinion was not rendered inadmissible simply because she lacked personal knowledge of every underlying fact. See Tex. R. Evid. 703 (noting that an expert need not have a personal observation of facts to form an opinion based on those facts); Tillman v. State, 354 S.W.3d 425, 439 (Tex. Crim. App. 2011) (holding that an expert's opinion was admissible even though the expert had not been present for the testimony of every witness).
For all of these reasons, we conclude that the trial court did not abuse its discretion by admitting the expert testimony from Symonds.
OTHER EVIDENCE OF THE EXTRANEOUS OFFENSE (Issues 10 and 11)
In addition to the DNA evidence from the extraneous sexual assault, the trial court admitted testimony from the complainant in that extraneous offense, as well as a nurse's report from that complainant's sexual assault examination. The extraneous complainant was unable to identify appellant as her assailant, and the nurse's report did not contain any evidence of identity either. In effect, the DNA evidence was the only nexus between appellant and the extraneous offense.
In his final two issues, appellant argues that if the DNA evidence from the extraneous sexual assault was inadmissible (as he argued in issues eight and nine), then the trial court abused its discretion by admitting this other evidence as well. Because we just concluded that the trial court did not abuse its discretion by admitting the DNA evidence, we necessarily conclude that these final two issues lack merit.
CONCLUSION
The trial court's judgment is affirmed.
Hassan, J., dissenting.
DISSENTING OPINION
A jury convicted Appellant Alan William Null of sexual assault of a child. At the punishment phase, the jury (over Appellant's timely and overruled objections) (1) heard testimony from Mary Symonds ("Symonds") concerning DNA evidence connecting him to an extraneous sexual assault, (2) saw Symonds' report (based on an out-of-state laboratory's testing) that connected Appellant to the assault, and (3) saw a nurse examiner's records concerning the extraneous assault. Appellant was sentenced to 60 years' confinement.
Appellant timely appealed, arguing the trial court's admission of said evidence was inadmissible based on Texas Rule of Evidence 702. I agree the foregoing evidence was inadmissible under Texas Rule of Evidence 702, that Appellant timely objected to its admission, and that Appellant was harmed by its erroneous admission. Therefore, I dissent and would reverse and remand to the trial court for a new trial on punishment.
I. Relevant Facts
Appellant timely objected both in writing pre-trial and at trial (and obtained a running objection) concerning Symonds' testimony. These objections specifically invoked the Confrontation Clause, Texas Rule of Evidence 702, Symonds' lack of personal knowledge, and the resulting unreliability of her testimony. Appellant's objections were overruled, Symonds testified, and the trial court admitted both her report and a nurse examiner's records concerning the extraneous assault.
Symonds testified that she was previously a DNA analyst with the Houston Forensic Science Center (an accredited laboratory) for five years, that she would "analyze profiles obtained from evidence" and "do the comparison of evidence to a reference and then write the report and draw the conclusions we obtained," and that she had testified 30 or 40 times in Harris County. She explained that at the Houston Forensic Science Center, DNA would be tested in four steps: (1) extraction, (2) quantification, (3) amplification, and (4) tagging. She further explained that she (1) was asked to perform a comparison between the "evidence that was processed at Bode Laboratories," (2) "determined if there was any profiles that were formed to . . . do a comparison," and (3) compared said evidence to known buccal swabs from Appellant. Symonds testified that Bode performed each of the foregoing steps on portions it received from the Houston Forensic Science Center and that her role was to ensure the data was "in compliance with their operating procedures"; "basically", she ensured "that those four steps that we do in our lab, they completed, as well, with the same standards that we set . . . so I would go through, check all of their data, check all of their worksheets, and make sure that they had everything signed and dated and filled in where it should've been filled in."
Emphasis added.
Emphasis added.
Symonds was not present at Bode while it was testing the samples at issue. Instead, she compared the profile she received from Bode to another profile and created a new report. This report was admitted as State's exhibit 22 over Appellant's objection and published to the jury. It references the previous analysis conducted at Bode; references a comparison between said analysis and "portions of known buccal swabs from [Appellant];" and concludes that based on Bode's analysis of the item in question (the Complainant's shorts), Appellant could not be excluded as a possible contributor to the DNA profile.
On cross-examination, Symonds testified that Bode Laboratories had its headquarters in Virginia, that she had never been there, and that she had never toured its lab. She also admitted she did not know: (1) the Bode analyst who issued Bode's report; (2) said analyst's qualifications; (3) if said analyst was properly certified (but assumed she was because she worked for Bode); (4) who performed the extraction, the quantification, or the amplification; (5) what instruments Bode used at the time; (6) whether Bode's instruments were properly calibrated (and checked her checklist to see if it was one of the controls Bode checked); (7) whether Bode's analysts followed their own protocols; (8) Bode's protocols for storage of biological specimens; (9) how Bode documented its chain of custody; and (10) who from the Houston Forensic Science Center confirmed Bode met the Center's standards or what steps Bode took. Symonds also testified that "the evidence electropherograms" she utilized in this case were "generated by Bode."
Symonds summarized an electropherogram as a software-generated visual representation of raw data.
Emphasis added.
Symonds relied on Bode's work; after Bode processed the work, she "would not have regenerated the profile." When asked if she could tell whether someone at Bode was intentionally or unintentionally "screwing something up" "just by reviewing what [she] reviewed," Symonds responded, "I don't think so"; instead, she acknowledged that she was relying on the fact that that is not happening. The State produced no other witness that had personal knowledge concerning Bode's tests.
In its brief, the State contends: "The laboratory was in compliance with the FBI standards." In support, the State cites testimony from Symonds: "My understanding of how they decided, they went and did on-site visits, then they went through all of their operating procedures. They made sure that they were in compliance with the FBI standards, the national standards; they checked their standard operating procedures[.]"). Symonds admitted, however, that she had no personal knowledge of the procedures. See 7 RR 159 ("That's just my personal interpretation of what I heard happened.").
II. Waiver
The majority implicitly finds that Appellant's Confrontation Clause argument was waived on appeal. There can be little doubt that Appellant's objection to the trial court based on the Confrontation Clause conveyed to the trial court that he was objecting based on the Confrontation Clause. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) ("While no 'hyper-technical or formalistic use of words or phrases' is required in order for an objection to preserve an error, the objecting party must still 'let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it.'") (quoting Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 2012) (en banc))); Bell v. State, 881 S.W.2d 794, 803-04 (Tex. App.-Houston [14th Dist.] 1994, pet. ref'd) ("objection was sufficient to put the trial court on notice"); see also CR 159-167 ("Defendant's Objection to Surrogate Testimony by Houston Forensic Science Analyst Mary Symonds Regarding DNA Tested by Bode Technology Pursuant to the Confrontation Clause and Texas Rule of Evidence 702").
Appellant's Confrontation Clause argument, however, was not presented on appeal. Appellant's brief quotes his verbal objection to the trial court:
I'd like to renew my objection, subject to the [C]onfrontation [C]lause as well as Texas Rule[] of Evidence 702. Specifically, I filed a written objection in this case and I've referred to that as the specific grounds for my objection, but it's based on the [C]onfrontation [C]lause and 802 [sic] and that this witness should not be allowed to testify as to testing done by Bode.
These two sentences are the only time the Confrontation Clause is mentioned in Appellant's entire appellate brief (and he did not file a reply). These sentences also reference the foregoing "written objection" that expressly briefed the Confrontation Clause (see CR 159-167); under the circumstances, however, I agree with the majority that this is insufficient (1) to present the issue to us and (2) to put the State on notice that Appellant intended to present it to us.
The State further contends Appellant did not preserve his complaint concerning the reliability of DNA evidence because "no objection was made to the court giving specific reasons for why the appellant thought that the State had not met one of the showings under Rule 702." Specifically, the State argues Appellant "never objected and put either the trial court or the State on notice of how its predicate that it had laid was inadequate[.]" Appellant objected under Texas Rule of Evidence 702 because "the witness [Symonds] has no knowledge as to how Bode conducted their DNA testing, or whether the person who did the testing was qualified to do it or whether he or she did it correctly." CR 159; see also CR 166 (Appellant objected under Rule 702 because Symonds "has no actual knowledge about the underlying methodology that Amanda Mendoza and Bode used to produce their report" and without such personal knowledge, her "scientific conclusion . . . is unreliable"). Therefore, the State's contention is without merit.
Nothing like that happened here, and Appellant is not attacking the reliability of the test; instead, he is attacking the State's apparent failure to meet its burden to prove reliability. The State's reliance on readily-distinguished out-of-circuit precedent for the proposition that the trial court did not abuse its discretion when it admitted the evidence at issue belies the meritlessness of its contention. The State's singular citation to United States v. Beasley from the Eighth Circuit in support of its counterattack is unavailing. First, it is from the Eighth Circuit and the State fails to cite any other court that follows it in any regard. Second, the district court in that case held a Daubert hearing to determine whether the method utilized therein was reliable. United States v. Beasley, 102 F.3d 1440, 1445 (8th Cir. 1996). Third, the district court at the hearing ("which consumed more than three days") heard experts from both sides, "received numerous exhibits", and "carefully set forth its particularized findings" regarding the method at issue. Id. The court found (1) the method had been tested and was reliable, (2) the method and its forensic use had been subjected to peer review, and (3) the use thereof had been generally accepted within the forensic science community. Id. at 1446. On appeal, Beasley attacked the reliability of the test, but only after said test had already been found reliable by the district court in a detailed order following more than three days of hearings.
Finally, the State complains that Appellant's running objection under the Confrontation Clause and Texas Rule of Evidence 702 did not preserve error because it covers "too broad of a subject matter." The State relies on Cantu v. State, 939 S.W.2d 627, 634 (Tex. Crim. App. 1997) (en banc). In Cantu, defense counsel asked for "a running objection to all these hearsay statements." Id. The Texas Court of Criminal Appeals concluded that (1) Cantu's objections encompassed both the Texas Rules of Criminal Evidence and the Confrontation Clause and (2) Cantu's failure to identify which one of the two he was invoking was insufficiently "specific to preserve review on appeal." Id. Here, Appellant's arguments put both the State and the trial court on notice that he was objecting to Symonds' testimony under Texas Rule of Evidence 702 because she lacked sufficient personal knowledge and her conclusions were unreliable. CR 159; see also CR 166. Given that the trial court read Appellant's objections, understood Appellant's objections, and granted a running objection "to this testimony, " it appears clear to me that the trial court understood what Appellant wanted when it was in a proper position to do something about it. See Clark, 365 S.W.3d at 339; Bell, 881 S.W.2d at 803-04.
7 RR 128-29 (After Appellant's trial counsel objected under Texas Rule of Evidence 702, he stated: "Specifically, I filed a written objection . . . based on . . . 702 that this witness should not be allowed to testify as to testing done by Bode." The Court responded: "I've read your brief. I think your argument is well thought out, well written, and relatively brilliant. However, I disagree with its ultimate conclusion; and I do believe the law allows this until some other court said otherwise. So that being said, your objection is overruled; but I will give you a running objection to this testimony.") (emphasis added).
As a result, I would reject the State's contention that Appellant did not preserve his complaint under Texas Rule of Evidence 702 and conclude he specifically contended (1) Symonds had insufficient personal knowledge and (2) the State's evidence at the punishment stage concerning an extraneous sexual assault was unreliable.
The most direct route to analyzing the legal issues herein appears to be via the Texas Court of Criminal Appeals' holding in Burch. There, (1) "[a]t trial, the State offered into evidence a one-page lab report"; (2) the relevant findings in said report were conclusory and inculpatory; (3) the State offered a reviewer of said report (instead of the analyst) to sponsor its introduction into evidence; (4) the analyst was unavailable; (5) "[n]o evidence was offered as to why [the analyst] had left the laboratory; (6) the testifying witness "basically double-checked everything that was done"; (7) no evidence established the testifying witness "actually saw the tests being performed or participated in them"; (8) "[t]he appellant objected, alleging a violation of his Sixth Amendment right to confront witnesses against him"; and (9) "[t]he trial court overruled his objection and admitted the report, the underlying physical evidence, and [the inculpatory testimony at issue]." Burch v. State, 401 S.W.3d 634, 635-40 (Tex. Crim. App. 2013). However, Burch dealt with the Confrontation Clause, did not address Texas Rule of Evidence 702, and was not cited by either party on appeal (although Appellant cited it to the trial court).
Appellant's appellate argument assails the admissibility of evidence under Texas Rule of Evidence 702. A witness "qualified as an expert by knowledge, skill, experience, training, or education" may present opinion testimony if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. Wellons v. Valero Ref.-New Orleans, L.L.C., 616 S.W.3d 220, 229 (Tex. App.-Houston [14th Dist.] 2020, no pet.) (citing Tex. R. Evid. 702; K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (per curiam); and GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 620 (Tex. 1999)). "For expert testimony to be admissible, the proponent of the testimony must establish that the expert is qualified and that his testimony is relevant and based upon a reliable foundation." Id. (emphasis added) (citing E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995)). "In evidentiary matters, a trial court is a gatekeeper, ensuring expert testimony is relevant and based on a reliable foundation. See In re Interest of J.R., 501 S.W.3d 738, 748 (Tex. App.-Waco 2016, no pet.).
Appellant specifically contends that a proponent of evidence must prove scientific reliability by clear and convincing evidence. I agree. See Jenkins v. State, 493 S.W.3d 583, 601-02 (Tex. Crim. App. 2016) ("The proponent of the scientific evidence bears the burden of demonstrating, by clear and convincing evidence, that the evidence is reliable.") (citing Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992)); see also 2 Steven Goode & Olin Guy Wellborn III, Texas Practice: Texas Rules of Evidence § 702.5 (4th ed. 2020) ("Unless the proposed evidence is supported by appropriate validation, it cannot qualify as 'scientific knowledge' . . . . Therefore, admissibility of scientific evidence requires a showing that it is based on scientifically valid principles."). Thus, we should examine whether the State proved the scientific reliability of the evidence at issue via clear and convincing evidence. See Tex. R. App. P. 47.1 ("The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.").
A. Reliability
Reliability of scientific evidence can be established when three criteria have been met "in any particular case": "(a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question." Kelly, 824 S.W.2d at 573 (citing Tex. R. Evid. 705; P. Giannelli & E. Imwinkelried, Scientific Evidence § 1-1 (1986)). The Texas Court of Criminal Appeals could not be more clear: "All three criteria must be proven to the trial court, outside the presence of the jury, before the evidence may be admitted." Id. (emphasis in original). Factors that could affect such a determination include (but are not limited to):
(1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained;
(2) the qualifications of the experts testifying;
(3) the existence of literature supporting or rejecting the underlying scientific theory and technique;
(4) the potential rate of error of the technique;
(5) the availability of other experts to test and evaluate the technique; the clarity with which the underlying scientific theory and technique can be explained to the court; and
(6) the experience and skill of the person(s) who applied the technique on the occasion in question.Id. (formatting added) (citing 3 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 702[03] (1991)).
1. Theory
Despite these standards and Appellant's timely and clear objection pursuant to Texas Rule of Evidence 702 concerning lack of personal knowledge and reliability, the State's appellate brief fails to cite any record evidence tending to support the proposition that it proved to the trial court via clear and convincing evidence that the evidence at issue was based upon a valid underlying scientific theory. Therefore, this argument is waived. Compare Tex. R. App. P. 38.2(a)(1) (subjecting appellees' briefs to most of the same requirements as appellants' briefs) with 38.1(i) (requiring briefs to contain "appropriate citations . . . to the record."); see also Guajardo v. Hitt, 562 S.W.3d 768, 781 (Tex. App.-Houston [14th Dist.] 2018, pet. denied) ("It is not our duty to review the record, research the law, and then fashion a legal argument for an appellant when he has failed to do so.") (citing Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931-32 (Tex. App.- Houston [14th Dist.] 2008, no pet.)); Reule v. M & T Mortg., 483 S.W.3d 600, 617 (Tex. App.-Houston [14th Dist.] 2015, pet. denied) (citing Goad v. Hancock Bank, No. 14-13-00861-CV, 2015 WL 1640530, at *5 (Tex. App.-Houston [14th Dist.] Apr. 9, 2015, pet. denied) (mem. op.) (holding that a "passing argument" that contains no substantive argument, analysis, or citation to the record or relevant authorities constitutes briefing waiver)); and Priddy v. Rawson, 282 S.W.3d 588, 595 (Tex. App.-Houston [14th Dist.] 2009, pet. denied) (noting that "[a]s an appellate court, it is not our duty to perform an independent review" of the record for evidence supporting an appellant's position) (citing King v. Wells Fargo Bank, N.A., 205 S.W.3d 731, 735 (Tex. App.-Dallas 2006, no pet.)).
Instead of endeavoring to establish that the State met its burdens, both the State's brief and the majority rely upon the well-known fact that courts are permitted to take judicial notice of select facts. See generally Tex. R. Evid. 201. Without evidence that the trial court took judicial notice, this is an unremarkable recitation of an unambiguous Rule. What is remarkable is that both the State and the majority agree that (1) the trial court could have taken judicial notice that DNA is reliable, (2) because the trial court could have done so, it effectively did so, and (3) the trial court's plausible judicial notice alleviated the State's burden to prove reliability via clear and convincing evidence. This construction misconstrues the rules concerning judicial notice; parties cannot exercise their rule-based entitlement to be heard if courts are now able to take judicial notice without notifying anyone. See Tex. R. Evid. 201(e) ("On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard."); see also In re C.L., 304 S.W.3d 512, 515 (Tex. App.-Waco 2009, no pet.) (holding that if a court takes judicial notice sua sponte "it must at some point notify the parties that it has done so and give them an opportunity to challenge that decision") (citing In re Graves, 217 S.W.3d 744, 751 (Tex. App.-Waco 2007, orig. proceeding); Tranter v. Duemling, 129 S.W.3d 257, 262-63 (Tex. App.-El Paso 2004, no pet.); In re Harman Int'l Indus., Inc., No. 04-00-00256-CV, 2000 WL 1060516, at *2 (Tex. App.-San Antonio July 19, 2000, orig. proceeding); and McDaniel v. Hale, 893 S.W.2d 652, 673 (Tex. App.- Amarillo 1994, writ denied)). Although this court has previously refused to follow In re C.L., we have done so on the basis that a trial court may take judicial notice of the record without a request. See In re A.W.B., No. 14-11-00926-CV, 2012 WL 1048640, at *3 (Tex. App.-Houston [14th Dist.] Mar. 27, 2012, no pet.) (mem. op.). Here, the majority's presumption that a trial court took judicial notice without notifying the parties cannot be justified by our rules or precedents.
In this case, the trial court explicitly took judicial notice one time during the trial to bring closure to an absurd exchange. I therefore would conclude (1) the State failed to meet its burden to establish scientific reliability by clear and convincing evidence and (2) the trial court erred when it admitted the evidence at issue despite the absence of evidence tending to prove the reliability of the theory. See In re S.E.W., 168 S.W.3d 875, 883 (Tex. App.-Dallas 2005, no pet.).
See 7 RR 146-47 ("Q. For reference, what's the population of Earth? A. I think last time I checked, it was about 7.8 billion. Q. Okay. A. No, that seems low. That might be Houston. Hold on. I wrote it down. Oh, yeah. The Earth's population, 7.7 billion. Houston is 2.2 billion. THE COURT: Houston is not 2.7 billion. THE WITNESS: It's at 2.7 now? THE COURT: Million. THE WITNESS: Oh, million? Did I write it wrong? THE COURT: Houston is a big place, but it's not a billion. I'll take judicial notice of that, and let's move on.").
Despite these standards, the Texas Department of Protective and Regulatory Services (like the State here) offered no evidence explaining the scientific theory at issue or the reliability of the tests at issue; it also (like the State here) failed to ask the trial court to take judicial notice of said reliability. Id. at 884 (citing Tex. R. Evid. 201; Hernandez v. State, 116 S.W.3d 26, 29 (Tex. Crim. App. 2003) (en banc) (concluding that scientific validity and reliability of scientific theory and methodology can be established by judicial notice)). "Thus, the trial court was not presented with the information necessary for it to perform its gatekeeping function." Id. (citing Hernandez, 116 S.W.3d at 30) (concluding trial court abused its discretion in admitting drug test results of an ADx analyzer "without any showing of its scientific reliability or any reliance upon other scientific materials or judicial opinions which had found 'an ADx analyzer' a reliable methodology for determining whether a person does or does not have marijuana in his body.")). In sum, the analyst's limited expertise "could not bootstrap the reliability of the actual testing procedures done by the remote laboratory" and the trial court abused its discretion when it admitted his testimony. Id. There, the Dallas Court of Appeals heard an appeal in a termination of parental rights case. A company's certified analyst testified (1) the company shipped DNA specimens to an independent laboratory in Nevada, (2) the laboratory performs the tests, (3) the laboratory sends a report, (4) he had never been to the laboratory, (5) he believed the laboratory was qualified and had excellent reliability, and (6) he "had no knowledge of how the actual tests were performed on these samples, of the protocols used for the instruments or whether those protocols were followed with these samples, and whether or not a standard was run before or after the tests." Id. at 883. Said analyst was the sponsoring witness of the test results. Id. The primary issues were "whether an expert witness was qualified to give an opinion as to the results of drug testing of hair samples and whether the opinion was reliable where the expert did not conduct the test or know which of several available tests the laboratory used." Id. at 878. Analyzing an objection to the admissibility of an expert witness opinion, our sister court analyzed Texas Rule of Evidence 702 and held the analyst's "interpretation of the results of the laboratory tests fails to establish that those results are reliable." Id.
2. Technique
The majority proceeds to fault Appellant for failing to attack the validity of the technique that applied the scientific theory at issue. In doing so, I believe the majority improperly attempts to shift the State's burden concerning the admissibility of its expert testimony to Appellant. See Jenkins, 493 S.W.3d at 601-02 ("The proponent of the scientific evidence bears the burden of demonstrating, by clear and convincing evidence, that the evidence is reliable.") (citing Kelly, 824 S.W.2d at 573). Instead of acknowledging that the State failed to meet its burden to establish the validity of the technique Bode used, the majority concludes "the trial court was free to take judicial notice that this technique is also valid." Majority Op. at 13. Our relevant rules and precedents are clear; therefore, I neither agree with nor condone the majority's construction of a new rule that foreseeably benefits only the State in criminal cases and selectively eliminates a rule-based burden that applies to other parties in other cases. We should not forge such a tool simply so that we may affirm a trial court's error.
3. Application
The majority also faults Appellant for failing to "produce any affirmative evidence showing that Bode's application of the technique was incorrect"; instead (according to the majority), Appellant "merely elicited testimony that Symonds had no personal knowledge of certain issues, such as whether Bode's instruments were properly calibrated, or whether the Bode analyst who performed the test was qualified." Majority Op. at 14. Appellant's elicitation of Symonds' concession that she had minimal relevant personal knowledge establishes the impossibility of Appelalnt producing affirmative evidence showing Bode's application was incorrect (despite the fact that it was not yet his burden to prove); not even the burdened State introduced any evidence capable of proving Bode's application because none of its witnesses had relevant personal knowledge concerning said application. Cf. Braziel v. State, No. 74139, 2003 WL 22250398, at *4 (Tex. Crim. App. Oct. 1, 2003) (evidence was sufficiently reliable because the DNA analyst who performed the testing testified to her protocols, the acceptability thereof within the scientific community, the lab's internal controls, and her compliance therewith). This result is already precluded by the Confrontation Clause. See Paredes v. State, 462 S.W.3d 510, 517-18 (Tex. Crim. App. 2015) ("When the testifying expert has no personal knowledge of how the testing was conducted, a defendant still cannot adequately challenge through cross-examination the conclusion of that non-testifying analyst offered in that non-testifying analyst's report. For an expert's testimony based upon forensic analysis performed solely by a non-testifying analyst to be admissible, the testifying expert must testify about his or her own opinions and conclusions. While the testifying expert can rely upon information from a non-testifying analyst, the testifying expert cannot act as a surrogate to introduce that information.").
While I acknowledge the merits of Appellant's Confrontation Clause argument have been waived and cannot serve as an independent basis for reversal, waiver does not require us to close our eyes to the fact that an unbriefed constitutional protection already precluded the State from performing a particular act (e.g., proffering only one relevant testifying expert to support introduction of DNA evidence despite that person having "no personal knowledge of how the testing was conducted"). See Paredes v. State, 462 S.W.3d 510, 517 (Tex. Crim. App. 2015).
See also Williams v Illinois, 567 U.S. 50, 91 (2012) (Breyer, J, concur ring) ("Lower courts and treatise writers have recognized the problem. And they have come up with a variety of solutions. The New Wigmore, for example, lists several nonexclusive approaches to when testifying experts may rely on testing results or reports by nontestifying experts (i.e., DNA technicians or analysts), including: . . . (4) permitting a DNA analyst to introduce DNA test results at trial without having 'personally perform[ed] every specific aspect of each DNA test in question, provided the analyst was present during the critical stages of the test, is familiar with the process and the laboratory protocol involved, reviews the results in proximity to the test, and either initials or signs the final report outlining the results'; [and] (5) permitting the introduction of a crime laboratory DNA report without the testimony of a technician where the 'testing in its pre-liminary stages' only 'requires the technician simply to perform largely mechanical or ministerial tasks . . . absent some reason to believe there was error or falsification'[.]") (citing D. Kaye, D. Bernstein, & J. Mnookin, The New Wigmore: Expert Evidence, §§ 4.10.2, 4.10.3 (2d ed. 2010) (internal quotation marks and footnote omitted); id. at § 4.11.6); Burch, 401 S.W.3d at 637 (the defendant was deprived of the opportunity to challenge witness's testimony because witness "could not verify that the results were properly generated").
Despite the State's burdens, it introduced results from Bode's tests connecting Appellant to an extraneous sexual assault through a surrogate who sponsored the admission of evidence (in the form of a comparative report) that could not have existed but for Bode's analysis and report; if Bode had not taken steps at its out-of-state laboratory, analyzed the results, and drafted a report, there would have been nothing from which Symonds could have prepared her new report. Despite her minimal personal knowledge of relevant facts concerning Bode, Symonds was the only sponsoring witness. The trial court abused its discretion when it admitted this evidence precisely because it was already inadmissible as a matter of law. See Paredes, 462 S.W.3d at 518. The State cannot escape its burdens simply by producing a surrogate witness with minimal knowledge of relevant facts, particularly given that personal knowledge is already required by the United States Constitution's Confrontation Clause. See Bullcoming v. New Mexico, 564 U.S. 647, 652 (2011) (only the presence of "that particular scientist" who produced the report would enable Bullcoming's counsel to ask "questions designed to reveal whether incompetence . . . or dishonesty" tainted the results).
Two of the three separate writings in Williams recount the dangers of relying upon people without personal knowledge of the relevant facts via the trial of John Kocak in California. There, an analyst testified that DNA came from Kocak. After cross-examination, she "realized she had made a mortifying error. She took the stand again . . . [and testified] 'I'm a little hysterical right now, but I think . . . the two names should be switched.'" See Williams, 567 U.S. at 119 (Kagan, J., dissenting). "At some point during the writing of the report, someone, perhaps the testifying analyst herself, must have misread the proper original sample labeling." Id. at 89 (Breyer, J., concurring). "Our Constitution contains a mechanism for catching such errors - the Sixth Amendment's Confrontation Clause." Id. at 119 (Kagan, J., dissenting).
See also Williams, 567 U.S. at 122 (Kagan, J., dissenting); id. at 129-30 ("By testifying in that manner, Lambatos became just like the surrogate witness in Bullcoming - a person knowing nothing about 'the particular test and testing process,' but vouching for them regardless . . . . We have held that the Confrontation Clause requires something more."); id. at 124-25 ([regarding the Confrontation Clause] "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.' . . . He 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 . . . . Indeed, Williams's lawyer was even more hamstrung than Bullcoming's. At least the surrogate witness in Bullcoming worked at the relevant laboratory and was familiar with its procedures. That is not true of Lambatos: She had no knowledge at all of Cellmark's operations. Indeed, for all the record discloses, she may never have set foot in Cellmark's laboratory."); Paredes, 462 S.W.3d at 514 ("As we observed, the testifying lab supervisor in Burch had no personal knowledge of the specific tests used to determine that the seized substance was cocaine as detailed in the lab report because she did not observe or perform any analysis . . . . Similarly, in Bullcoming, the United States Supreme Court considered both a certified lab report and testimony from an analyst who had not actually participated in or observed the testing of the defendant's blood . . . . But as the court of appeals observed in this case, Freeman had personal knowledge of the tests used, and she conducted the crucial analysis by comparing the DNA profiles and determining that the complainant's DNA profile matched the DNA from the bloodstain on appellant's T-shirt.") (citing Paredes v. State, 439 S.W.3d 522, 526 (Tex. App.-Houston [14th Dist.] 2014), aff'd, 462 S.W.3d 510 (Tex. Crim. App. 2015)); Paredes, 439 S.W.3d at 526; McWilliams v. State, 367 S.W.3d 817, 820 (Tex. App.-Houston [14th Dist.] 2012, no pet.) (distinguished from Bullcoming because witness "was a supervisor, involved with every aspect of the testing process, first by determining which samples should be tested, which tests should be conducted and in what order, then through supervision, then through analysis of the data, and lastly by writing the report. She had a direct connection to the scientific test at issue."); S.E.W., 168 S.W.3d at 883 (Turnage, an analyst, had no knowledge of how the tests were performed, the protocols used for the instruments, whether those protocols were followed, and whether a standard was run before or after the tests; "the actual results of the scientific tests are the relevant evidence of drug use in this case. Turnage was the sponsoring witness for the test results . . . . Turnage's 'opinion' that the samples tested positive for cocaine was beyond the scope of his expertise and based entirely on the written report he received from the laboratory in Nevada. Thus he did not have expertise concerning the actual subject about which he offered his expert opinion.") (citing Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex. 1998)).
IV. Harm
Having found error, we should proceed to decide whether that error affected Appellant's substantial rights to a fair sentencing trial. The trial court's admission of Symonds' testimony, Symonds' report, and the nurse examiner's records are non-constitutional errors that are harmless unless they affected Appellant's substantial rights. See Tex. R. App. P. 44.2(b); Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). A trial court's error affects a substantial right when improperly admitted evidence has a "substantial and injurious effect or influence" on the jury's verdict. Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018).
At punishment, the State invoked the name of the extraneous sexual assault victim 14 times and the Complainant's name 17 times; out of the six witnesses the State presented, five of them concerned the extraneous assault. The only evidence connecting Appellant to the Complainant was Symonds' testimony and report. The Complainant testified, but she did not describe or identify Appellant as her attacker; the Complainant also did not identify Appellant in a photo line-up. In response to this heavy reliance on improperly admitted extraneous offense, the jury sentenced Appellant to 60 years' confinement. I find it impossible to conclude the admission of evidence improperly connecting Appellant to a similar sexual assault was not harmful and would reverse and remand for a new punishment hearing. Therefore, I respectfully dissent.
Christopher, C.J., majority.