Opinion
NO. 01-16-00908-CR
05-08-2018
LINDSEY D. DUGAR, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court Harris County, Texas
Trial Court Case No. 1467024
MEMORANDUM OPINION
A jury convicted appellant Lindsey D. Dugar of aggravated sexual assault, and after finding the punishment-enhancement allegations to be "true," assessed his punishment at confinement for life in the Texas Department of Criminal Justice, Correctional Institutions Division. In his sole issue on appeal, appellant argues that he received ineffective assistance of counsel because his trial counsel did not object to the State's forensic DNA analyst's testimony that appellant could not be excluded as a contributor to the male DNA profile recovered from the complainant's dress and vaginal swab, and that such testimony violated appellant's rights to confrontation under the Sixth Amendment of the United States Constitution, Article I, Section 10 of the Texas Constitution, and Article 1.051 of the Texas Code of Criminal Procedure.
We affirm the trial court's judgment.
Background
On November 21, 1996, two armed men broke into the complainant's home and one man, later identified as appellant, sexually assaulted the complainant while the other man searched her home for valuables. After the men left, the complainant ran to a neighbor's home and called the Houston Police Department (HPD). An HPD officer collected the dress and pantyhose the complainant was wearing when she was assaulted and hospital personnel who performed the complainant's sexual assault examination collected various types of other physical evidence, including a vaginal swab. Subsequent forensic testing found DNA from an unknown male on the complainant's dress and vaginal swab.
In 2013, HPD requested that the unknown male DNA profile identified on the complainant's dress and vaginal swab be run through the Combined DNA Index System (CODIS), a DNA database administered by the Texas Department of Public Safety (DPS). In February 2015, DPS alerted HPD that the search yielded a preliminary match to appellant's DNA profile, which implicated appellant as a suspect and gave the police a new lead. HPD renewed the investigation and, on April 28, 2015, the investigating officer showed the complainant a photograph of appellant, along with the photographs of five similar-looking males. The complainant identified one of the other men as her attacker.
HPD subsequently obtained a buccal swab from appellant and submitted it for forensic DNA in order to verify the CODIS hit and to analyze and compare appellant's DNA profile against the male DNA profile that was discovered on the complainant's dress and vaginal swab.
At trial, Clay Davis, a forensic DNA analyst with the Houston Forensic Science Center (HFSC), testified about the general steps of forensic DNA analysis, including the screening and preliminary testing of an item of evidence for the potential presence of DNA; the subsequent, confirmatory testing for the presence of DNA; the extraction, quantification, amplification of the DNA; the development of a DNA profile or profiles from the sample; and, finally, the analysis and comparison of the DNA profile or profiles to other, known DNA profiles.
Davis testified that the vaginal swab yielded an epithelial fraction containing a mixture of DNA profiles from two people, at least one of whom is male; that one of the DNA profiles belonged to the complainant; that appellant could not be excluded as a contributor to the other identified DNA profile; and that the probability that another, randomly chosen, unrelated African-American person would be included as a contributor of that profile is approximately 1 in 6.9 million. Davis stated that the cutting from the complainant's dress yielded sperm and epithelial fractions. Davis reported that the sperm fraction contained a single-source, male DNA profile; that appellant could not be excluded as a contributor to that profile; and that the probability that another, randomly chosen, unrelated African-American male would be included as a contributor of that sperm-fraction DNA profile is approximately 1 in 76 quintillion. Davis explained that the epithelial fraction obtained from the complainant's dress contained a mixture of DNA profiles from two people, at least one of whom is male; that appellant could not be excluded as a contributor to the DNA mixture; and that the probability that another, randomly chosen, unrelated African-American male would be included as a contributor to the DNA mixture is approximately 1 in 140 million. Davis memorialized his interpretations, conclusions, and inclusion/exclusion statistics in a report that he prepared and signed, which the trial court admitted at trial.
In response to trial counsel's questioning, Davis testified that appellant's buccal swab was tested by HFSC and the complainant's dress and the vaginal swab were sent to Sorenson Forensics (Sorenson), an outside laboratory that the HFSC uses for testing, processing, and the development of DNA profiles. Davis stated that Sorenson tested the items and issued a report on August 26, 2013. Davis further testified that he independently analyzed and interpreted the information that he received from Sorenson and the HFSC analyst who tested appellant's buccal swab—in the form of paperwork, graphs, and raw data—and he compared the DNA profile recovered from the complainant's dress and vaginal swab by Sorenson to appellant's DNA profile. The Sorenson report was neither admitted into evidence nor shown to the jury.
With regard to the accuracy of the data he received from Sorenson, Davis explained that HFSC verifies the data they receive from outside laboratories. Specifically, Davis testified that when HFSC receives data from outside laboratories, including Sorenson, HFSC "actually take[s] ownership of their data," and HFSC "make sure all the controls are in place [and] that they produce the correct results." According to Davis, HFSC goes "through all the steps to make sure just like it was our own data, to make sure that it's sound, good quality data to use." Davis explained that there are positive and negative controls in place during each stage of testing and that if the positive and the negative come out as expected "then we can be confident that the data is sound and good quality data." If there is a problem with the testing procedure used, the control will not yield any results. Davis testified that this verification process was used in this case and that HFSC determined that Sorenson's data was acceptable to use. Davis also testified that he is familiar with Sorenson's testing protocols and that HFSC visited Sorenson's laboratory and has a copy of Sorenson's standard operating procedures on file.
Although appellant's trial counsel thoroughly cross-examined Davis about his analysis and conclusions, counsel did not object that the admission of Davis's report, or Davis's testimony that appellant could not be excluded as a contributor to the male DNA profile obtained from the complainant's dress and vaginal swab violated the Confrontation Clause.
Ineffective Assistance
Appellant argues that his trial counsel was ineffective for failing to lodge a Confrontation Clause objection to Davis's testimony that appellant could not be excluded as a contributor to the male DNA profile recovered from the complainant's dress and vaginal swab because the Sorenson analysts who extracted and developed the DNA profile did not testify at trial, and Davis, who did not personally perform or supervise the Sorenson analysts' work, did not have specific knowledge of the tests performed.
A. Standard of Review
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Under the Strickland two-step analysis, a defendant must demonstrate that (1) her counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88, 694, 104 S. Ct. at 2064, 2068; Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). An appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).
Appellate review of counsel's representation is highly deferential; we must "indulge in a strong presumption that counsel's conduct was not deficient." Nava, 415 S.W.3d at 307-08 (emphasis in original); see Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. To rebut that presumption, a claim of ineffective assistance must be "'firmly founded in the record'" and "'the record must affirmatively demonstrate'" the meritorious nature of the claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). Thus, the trial record alone is rarely sufficient to demonstrate an ineffective assistance claim. Nava, 415 S.W.3d at 308. If trial counsel has not been afforded the opportunity to explain the reasons for his conduct, we will not find him to be deficient unless the challenged conduct was "'so outrageous that no competent attorney would have engaged in it.'" Id. (quoting Menefield, 363 S.W.3d at 593); Goodspeed, 187 S.W.3d at 392.
"Counsel is not ineffective for failing to raise an objection that lacks merit." Bradley v. State, 359 S.W.3d 912, 919 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd) (citing Cooper v. State, 707 S.W.2d 686, 689 (Tex. App.—Houston [1st Dist.] 1986, pet. ref'd)). Therefore, we will evaluate the merits of appellant's Confrontation Clause argument in order to determine whether trial counsel's failure to object to Davis's testimony on this basis was deficient.
B. Confrontation Clause
The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend. VI. The United States Supreme Court has applied this rule to out-of-court "testimonial" statements and has held that testimonial statements are inadmissible at trial unless the witness who made the statement (1) takes the stand to be cross-examined or (2) is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness. See Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365 (2004); Paredes v. State, 462 S.W.3d 510, 514 (Tex. Crim. App. 2015). "The prior opportunity to cross-examine in person is both a necessary and a dispositive requirement for the admission of testimonial statements under the Confrontation Clause." Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim. App. 2013) (citing Crawford, 541 U.S. at 55, 124 S. Ct. at 1366-67).
Appellant also argues that the trial court violated his state Confrontation Clause right. See TEX CONST. art. I, § 10. "However, Texas courts decline to apply the state Confrontation Clause guarantee in a broader manner than the federal Confrontation Clause guarantee." McWilliams v. State, 367 S.W.3d 817, 820 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
The Supreme Court has not precisely defined what constitutes a "testimonial" statement under Crawford. See 541 U.S. at 51, 124 S. Ct. at 1364 (describing "[v]arious formulations of this core class of 'testimonial' statements"). The Court has held that an analyst's certification prepared in connection with a criminal investigation or prosecution, including blood-alcohol concentration reports and reports listing the composition, quality, and weight of the narcotics at issue, are testimonial and cannot be admitted without satisfying the requirements of the Confrontation Clause. See Bullcoming v. New Mexico, 564 U.S. 647, 659-61, 131 S. Ct. 2705, 2714-15 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311, 129 S. Ct. 2527, 2532 (2009). However, the Texas Court of Criminal Appeals has held that DNA profiles are non-testimonial. Paredes, 462 S.W.3d at 519.
In Bullcoming, the United States Supreme Court addressed whether the admission of a blood-alcohol concentration report through the testimony of an analyst who did not sign the report or observe the particular test that was performed violates the Confrontation Clause. See 564 U.S. at 652, 131 S. Ct. at 2710. At trial, the State did not call the analyst who had tested the blood-alcohol content and certified the results because he had recently been placed on unpaid leave. Id. at 655, 131 S. Ct. at 2711-12. The State instead offered the testing analyst's report through another analyst who was familiar with the laboratory's general procedures but who had neither observed the testing analyst perform the analysis of Bullcoming's blood sample nor reviewed the results of the analysis. Id., 131 S. Ct. at 2712. The Supreme Court held that this violated the Confrontation Clause because the testing analyst's report was testimonial and it could not be admitted into evidence through the "surrogate testimony" of another analyst. See id. at 661-65, 131 S. Ct. at 2715-17.
The Court considered it significant that the testifying analyst did not know why the analyst who actually performed the test and certified the results had been placed on unpaid leave. Id. at 662, 131 S. Ct. at 2715-16. The Court reasoned that, had the testing analyst testified at trial, "Bullcoming's counsel could have asked questions designed to reveal whether incompetence, evasiveness, or dishonesty accounted for [the analyst's] removal from his work station." Id. The Court further noted that the analyst who testified at trial did not offer an "independent opinion" concerning Bullcoming's BAC. Id., 131 S. Ct. at 2717.
The Supreme Court most recently addressed whether forensic opinion testimony violated the Confrontation Clause in Williams v. Illinois, 567 U.S. 50, 132 S. Ct. 2221 (2012). In that case, a plurality of the Court held that the defendant's rights were not violated when an expert for the prosecution, relying on a report generated by an out-of-state private laboratory, testified that semen samples belonged to the defendant. See id. at 57-58, 132 S. Ct. at 2227-28 https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2030868166&pubNum=0004644&originatingDoc=Idcb4165de9ec11e390d4edf60ce7d742&refType=RP&fi=co_pp_sp_4644_638&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search) - co_pp_sp_4644_638. The plurality determined that the out-of-court statement, i.e., that the matching DNA profile came from semen found on the victim's vaginal swabs, was not offered to prove the truth of the matter asserted but instead was offered to explain the basis of the expert witness's independent conclusion that the profile matched the defendant's DNA. Id. at 57-58, 132 S. Ct. at 2228. Alternatively, the plurality concluded that the report was not testimonial because it was created before there was a specific suspect and thus was not inherently inculpatory or created for use against the defendant. See id. at 84-85, 132 S. Ct. at 2243-44.
The Texas Court of Criminal Appeals addressed a similar issue in Burch, in which the State offered into evidence a testimonial lab report signed by both a testifying analyst and a reviewing analyst certifying that the substance tested was cocaine. 401 S.W.3d at 635-37. Only the reviewing analyst testified. Id. at 637. The court held that the case was governed by Bullcoming, and that because the reviewing analyst "could say only that the original analyst wrote a report claiming to have conformed with the required safeguards," cross-examining this witness did not satisfy the defendant's right of confrontation. Id.
In 2015, the Court of Criminal Appeals held in Paredes that the admission of a supervising DNA analyst's opinion regarding a DNA match that is based upon computer-generated data obtained through batch DNA testing did not violate the Confrontation Clause. 462 S.W.3d at 511. The director of the outside laboratory that performed the DNA testing testified at trial that her laboratory's testing "is conducted in an assembly-line batch process," with a different analyst conducting each step in the process to generate "raw DNA data," and that the final analyst takes data generated by other analysts and "uses it to determine whether the DNA profile obtained from the testing matches the DNA profile of a known individual." Id. The director testified that she supervised three analysts who completed the first three steps in this process and that she herself conducted the final step of comparing the DNA profile generated from the evidence to the known DNA profile of the victim. Id. The director also testified that she "did not physically watch each of the three analysts conduct the DNA testing process," but the lab had protocols in place to identify errors occurring during the process. Id. at 512. The State did not introduce the raw data that the director relied upon to perform her analysis, and the director testified that "she was not testifying about someone else's opinions because she was responsible for compiling the data generated by the various instruments and reaching the ultimate conclusion." Id. at 513.
The Court of Criminal Appeals distinguished the case from the United States Supreme Court's opinion in Bullcoming and the Texas Court of Criminal Appeals' opinion in Burch because the testifying expert in Paredes "was more than a surrogate for a non-testifying analyst's report." Paredes, 462 S.W.3d at 518. Unlike in those cases, the director testified that she "performed the crucial analysis determining the DNA match and testified to her own conclusions"; she "was not merely a supervisor who 'checked the boxes' on the lab report." Id. The court also noted that the lab reports the director relied upon to reach her conclusion were not offered into evidence, so this was "not a case in which the State attempted to bring in a testimonial lab report through a surrogate." Id.
The Paredes court further distinguished that case from prior cases because the director "relied upon raw, computer-generated data in reaching her conclusion rather than another laboratory analyst's report." Id. The court noted that, without the director's independent analysis, the "raw, computer-generated data"—the DNA profiles produced by the capillary electrophoresis instrument—would "stand for nothing on their own." Id. at 519. The DNA profiles generated by the testing analysts "are not the functional equivalent of live, in-court testimony because they did not come from a witness capable of being cross-examined. They came from a computer." Id. The court concluded that no Confrontation Clause violation occurred because the director did not testify regarding a formal report or assertion from a non-testifying analyst, as was the case in Bullcoming and Burch. Id. "Instead, she used non-testimonial information—computer-generated DNA data—to form an independent, testimonial opinion and appellant was given the opportunity to cross-examine her about her analysis." Id.
Last year, this court issued an opinion in Garrett v. State, 518 S.W.3d 546 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd), addressing a similar issue to the one presented in this case. In Garrett, the defendant argued that the trial court erred by admitting the report and testimony of Davis, the same testifying DNA analyst in this case. The defendant argued that the admission of this evidence violated the Confrontation Clause because, although Davis analyzed and interpreted the DNA results, two other analysts completed the extraction and amplification portions of the DNA testing. Id. at 549. The two analysts did not testify at trial and the DNA data that their testing generated was not admitted into evidence. Relying on the Court of Criminal Appeals' reasoning in Burch, the defendant argued that his confrontational rights were violated because Davis did not supervise the work of the analysts who performed the DNA testing or have personal knowledge of the specific tests they performed. See id. at 554. The Garrett court held that that case was governed by Paredes, not Burch, and relying on Paredes, this court held that because Davis independently analyzed the non-testimonial DNA profiles generated by the other analysts' testing, offered his own opinion concerning the comparison of the DNA profiles, and testified and was subject to cross-examination, the admission of his testimony and his lab report, even in the absence of testimony from analysts who performed the test, did not violate the Confrontation Clause. See id. at 556.
C. Analysis
Appellant argues that his confrontational rights were violated because Davis did not have personal knowledge of the specific tests that Sorenson performed and he did not rely on "raw, statistical data that came from a computer at Sorenson Forensics" but instead relied upon the work of analysts from an outsourced lab "who processed the biological evidence from the complainant and developed a complete DNA profile."
However, Davis testified that he independently analyzed and interpreted the paperwork, graphs, and raw data that he received from Sorenson and he compared the DNA profiles generated by Sorenson's work to appellant's known DNA profile. As was the case in Paredes and Garrett, Davis did not testify regarding a formal report or assertion from a non-testifying analyst. Instead, Davis used information—computer-generated DNA profiles—provided by Sorenson to form an independent, testimonial opinion and appellant was given the opportunity to cross-examine Davis about his analysis. See Paredes, 462 S.W.3d at 519; Garrett, 518 S.W.3d at 556. Unlike the reports generated by the non-testifying experts in Bullcoming and Burch, the DNA profiles prepared by Sorenson are non-testimonial in nature and were not admitted into evidence. See Paredes, 462 S.W.3d at 519. Without further analysis by Davis, the DNA profiles generated by Sorenson "stand for nothing on their own." Garrett, 518 S.W.3d at 555 (quoting Paredes, 462 S.W.3d at 519). It is Davis's conclusion, based on his independent analysis, that linked appellant to the complainant's assault, not Sorenson's.
Furthermore, there is no meaningful difference between the information that Davis relied upon and the information relied upon by the testifying experts in Paredes and Garrett. When the underlying lab analysis is not referred to or admitted into evidence, a testifying expert who independently analyzes raw DNA data may offer his own opinion concerning the comparison of the DNA profiles; if subject to cross-examination, then the admission of that opinion does not violate the Confrontation Clause. See Garrett, 518 S.W.3d at 556.
We hold that because Davis independently analyzed the raw DNA data submitted by Sorenson and offered his own opinion concerning the comparison of the DNA profiles, testified, and was subject to cross-examination, the admission of his testimony and his lab report does not violate the Confrontation Clause. See Paredes, 462 S.W.3d at 519; Garrett, 518 S.W.3d at 556.
Because appellant has failed to demonstrate that his counsel's performance was deficient as required by Strickland, we overrule appellant's sole issue. See Williams v. State, 526 S.W.3d 581, 584 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd).
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Justices Bland, Lloyd, and Caughey.
Do Not Publish. TEX. R. APP. P. 47.2(b).