Summary
holding that witness could offer expert opinion when she “personally compiled the DNA data supplied by non-testifying analysts, interpreted it, and performed the comparative analysis” and stating that “[a]n expert witness who offers her opinion based in part on lab work performed by another does not violate the Confrontation Clause.”
Summary of this case from Infante v. StateOpinion
No. 14-10-00266-CR
Opinion filed August 23, 2011. DO NOT PUBLISH. — TEX. R. APP. P. 47.2(b).
On Appeal from the 337th District Court, Harris County, Texas, Trial Court Cause No. 1241896.
Panel consists of Justices ANDERSON, SEYMORE, and McCALLY.
MEMORANDUM OPINION
A jury found appellant, Jovany Jampher Paredes, guilty of capital murder and the trial court imposed the mandatory sentence of lifetime confinement in the Texas Department of Criminal Justice, Institutional Division without the possibility of parole. See Tex. Penal Code Ann. §§ 12.31(a), 19.03(a)(2) (West 2011). Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
There is a large number of people involved in this appeal. Appellant is a member of SPPL, a Houston-area street gang. SPPL has chapters located in at least two different parts of the Houston metropolitan area: Katy and Club Creek. La Primera is a second Houston-area street gang. In addition to appellant, the SPPL members involved are Marina Montalvo, Eric Aguilar, Omar Pimental, Roberto Barcenas, Jessica Perez, Joe Rivera, and Luis Cano. The only member of La Primera relevant to this appeal is Raul Trevino, who was Montalvo's boyfriend at the time of the events at issue in this appeal. Finally, one person not affiliated with any gang was involved: Vanessa Baretto. Abelardo Sanchez and the complainant, Rafael Sanchez Cantu, lived in apartment 95 of the Kingsgate Apartments in southwest Houston. They were shot and killed when members of SPPL and La Primera broke into their apartment in an attempt to steal money and drugs after one of the apartment residents sold them a bad batch of cocaine. Appellant was charged by indictment with murdering Cantu while in the course of committing and attempting to commit robbery. Three members of SPPL testified against appellant. Rivera and Perez testified and were determined to be accomplices as a matter of law. Cano also testified against appellant but the trial court submitted an instruction for the jury to determine whether he was an accomplice. Because appellant has challenged the sufficiency of the evidence corroborating the accomplice witness testimony, we present the matter of law accomplice testimony separate from the remainder of the evidence.I. Accomplice Witness Testimony
A. Jessica Perez Perez joined the Katy branch of SPPL in 2005 when she was 16 years old. Perez testified that Cano was the founder and leader of the Katy branch of SPPL while appellant was the leader of the Club Creek branch. In the summer of 2007 Perez had a disagreement with Trevino, Montalvo's boyfriend and a member of La Primera. Appellant intervened in the disagreement. Appellant arranged for Trevino and Perez to meet on Saturday, September 1 at Perez's apartment complex. In addition, many other members of SPPL attended that meeting. Perez testified that her disagreement with Trevino was worked out late in the evening and the meeting then turned into a party that continued into the early morning hours of September 2. According to Perez, appellant, Trevino, Montalvo, Aguilar, Baretto, Pimental, Barcenas, and Rivera participated in the party. Perez also testified that Cano was present at the party in the afternoon but departed before the events underlying this appeal began. During the party, the participants drank, smoked marijuana, and used cocaine. Eventually the group decided to go to Galveston. The nine remaining partiers got into appellant's white Pontiac and Baretto's gray Mitsubishi Eclipse. Initially they travelled to the Kingsgate Apartments where appellant, Trevino, and Aguilar got out of the vehicles and purchased more cocaine from a dealer who lived in the apartment complex. After purchasing the cocaine, appellant, Trevino, and Aguilar returned to the vehicles and the group set out for Galveston. Perez was driving appellant's Pontiac while the other occupants of the vehicle used the cocaine. The group arrived in Galveston about dawn on September 2. Once on the beach, Perez testified that appellant, Barcenas, and Aguilar moved away from the rest of the group and engaged in a serious conversation. Perez testified that the trio eventually returned to the group and appellant was mad because he believed the cocaine they had purchased at the Kingsgate Apartments was too weak because it had been cut down too much. According to Perez, appellant wanted to go back to the Kingsgate Apartments and get his money back. The rest of the group went along with appellant. The group drove back to the Kingsgate Apartments where they arrived at about 10:00 a.m. Everyone except for Perez, Trevino, and Vanessa got out of the cars and walked around a corner. The six walked back to the cars a few minutes later. The group left the apartment complex and drove to a nearby gas station where appellant called Cano and asked for "the AK." Following appellant's telephone conversation with Cano, the group in appellant's Pontiac drove to Katy where they met Cano in a Wal-Mart parking lot. According to Perez, they pulled up beside Cano's car and Cano slid an AK-47 rifle into appellant's car. Perez testified that the Wal-Mart parking lot was a large parking lot that served other business establishments, including a Denny's restaurant. Next, appellant contacted another gang member and obtained a handgun from him. The group in appellant's Pontiac then drove back to the gas station near the Kingsgate Apartments. Once the two vehicles had come back together, Aguilar came up to the window of appellant's Pontiac and the group began discussing a plan to rob the Kingsgate drug dealer. Both vehicles returned to the Kingsgate Apartments where they parked around the corner and out of sight from apartment 95, the drug dealer's apartment. Everyone except Perez and Baretto exited the cars and walked around the comer toward apartment 95. As the group walked around the corner and out of Perez's sight, appellant carried the AK-47, Rivera a revolver, and Aguilar had a third gun. Soon after the group rounded the comer out of Perez's sight, Perez heard a gunshot. Following that initial gunshot, Perez saw Montalvo, Barcenas, Aguilar, and Pimental running back to the cars. They initially got back into the cars but then Montalvo told them to go back and get the rest of their group. In response to Montalvo's urgings, the four went back around the corner. After the four moved back toward apartment 95, Perez and Baretto moved both cars to a point in the apartment complex parking lot where Perez could see some of the group outside of the apartment. At that point in time, Perez heard more gunshots and everyone came running back to the cars. Trevino came back carrying a black rifle with a scope. According to Perez, this black rifle was unlike any of the weapons the group had carried with them when they originally left the cars. Rivera was carrying a plate of cocaine. Finally, appellant returned still carrying the AK-47. After getting back into the two cars, the group drove back to Perez's apartment, where they arrived at about noon. Once they had arrived at Perez's apartment complex, the group went straight into Perez's apartment bedroom. Once in the bedroom, Trevino asked Perez for a rag to clean the guns. After giving Trevino a rag, he proceeded to clean the black gun. In addition, appellant asked Perez for another shirt to replace the one he was wearing because it had blood on it. Appellant took off his shirt and gave it to Perez and told her to wash it. Instead, she put the t-shirt in her closet with her dirty laundry and never did get around to washing it. After stashing appellant's shirt in her closet, Perez went to take a shower. When Perez returned to the group, appellant told her he had hidden the AK-47 in her closet. After she came back from taking a shower, Perez heard everyone talking about what had happened at the Kingsgate Apartments. Appellant admitted that he had shot someone and "there was blood gushing out like a river."B. Joe Rivera
Rivera testified that he was a member of SPPL. Rivera recalled that he arrived at Perez's apartment about 10:00 p.m. the night of September 1, 2007. Rivera rode to Perez's apartment in Baretto's Mitsubishi Eclipse. Rivera testified that Aguilar, Trevino, and Montalvo also rode to the party with Baretto. Rivera did not see Cano at Perez's apartment that evening. According to Rivera, everyone was drinking, smoking marijuana, and using cocaine at the party. Rivera testified that the group ran out of cocaine about 3:00 a.m. At that point, everyone left in two cars to go get more cocaine from a dealer at the Kingsgate Apartments. Rivera explained they knew they could get the cocaine at the Kingsgate Apartments because the dealer there was a friend of Trevino's. Once they arrived at the Kingsgate Apartments, appellant and Trevino got out of the cars and moved out of sight to purchase the cocaine. When appellant and Trevino returned, the group left the Kingsgate Apartments and drove down to Crystal Beach, arriving just before sunrise. Everyone spent the next hour using the cocaine. While the others were using the cocaine, appellant and Trevino walked away from the group and conversed for about thirty minutes to an hour. When they returned, appellant was very upset because he thought the cocaine was weak. According to Rivera, appellant wanted to return to the Kingsgate Apartments and rob the dealer. While appellant was "fired up" over the weak cocaine, the rest of the group was tired and uninterested in settling the score with the dealer over such a small amount of money. Despite the others lack of interest, appellant kept talking about the bad cocaine for about twenty minutes and eventually rallied everyone to go along with his robbery plan. Appellant stated they would take the dealer's drugs and money. The group returned to the Kingsgate Apartments at about 9:00 a.m. As appellant discussed the proposed robbery, Trevino cautioned appellant that the dealers had an assault rifle in their apartment. At that point in time, the group had only a single gun, a revolver, which belonged to Rivera and was being held by Trevino. Appellant, Rivera, and Trevino approached the back door of the apartment, intending to knock on the door under the pretext of seeking to buy more cocaine. Their knocks, however, went unanswered for five minutes so they returned to the cars. Appellant decided the group needed more guns, so he called Cano and said, "We need the AK. We're going to pick it up." They drove toward Katy where they met Cano in the parking lot of a Sam's near the intersection of Interstate 10 and Highway 6. When Cano pulled up, appellant got out of his car and got the gun from Cano and got back into his car. After the exchange, Cano drove off and had no further involvement with the group. The group then got a .22-caliber revolver from Spooky, another SPPL gang member, and they drove back to the Kingsgate Apartments, arriving at about 11:00 a.m. Appellant loaded the AK-47 on the drive back to the apartments. Once they reached the Kingsgate Apartments, everyone got out of the cars and appellant formulated a plan to rob the dealers of their drugs and money. Perez and Baretto remained in the cars while the other gang members approached the apartment. Appellant had the AK-47, Trevino had a .38-caliber handgun, and Aguilar had the .22-caliber revolver. While walking toward the back door of apartment 95, appellant concealed the AK-47 in a Rockets jersey. Appellant, Trevino, and Rivera knocked on the back door of the apartment and pretended to be interested in buying more cocaine. An occupant opened the door and invited them inside. At that point, appellant came forward with the AK-47. They walked into the kitchen and the gang members noticed someone was asleep on the sofa in the living room. Trevino approached the man on the sofa, tried to wake him up and when that failed, he hit him in the head with a gun. The gang members then cornered the two known occupants of the apartment. Trevino then pointed his gun at the two men and demanded to know where the drugs and money were located. Appellant also pointed his gun at both men and demanded money and drugs. The men claimed they did not have anything. While appellant and Trevino were dealing with the two occupants, Rivera began searching the kitchen for drugs and money. While Trevino watched the two men cornered in the living room, appellant walked down a hallway toward the bedroom area of the apartment. He initially turned toward the bedroom located in the southwest comer of the apartment. Appellant removed the Rockets jersey from his weapon, pointed it into the bedroom, and demanded drugs and money from a man in the bedroom. Rivera, who was still searching the kitchen, heard a man in the bedroom tell appellant he did not have any money or drugs. Appellant then fired about five shots from the AK-47 into the bedroom. The occupant of the southwest bedroom did not make any further noise after the gunshots. Appellant returned to the living room and instructed Rivera to help him check the other bedroom. While Trevino stayed with the two occupants in the living room, Rivera followed appellant into the southeast bedroom. Rivera did not see anyone in the bedroom, but he immediately saw "a big plate of dope" on a table. While Rivera began bagging and pocketing the dope, appellant walked toward a closed door in the southeast bedroom. Appellant tried to open the door but it was locked. Appellant then shot the doorknob, the door came open and a man came running out of the bathroom crying, screaming, and yelling. As he did so, he pointed a rifle at appellant. Appellant attempted to shoot this man with the AK-47, but the gun jammed. Appellant then called out to Trevino for help. Trevino ran back to the southeast bedroom and fired one shot at the man pointing the rifle at appellant, who then fell back on the bed. Trevino grabbed the rifle out of the hands of the man on the bed, hit him with it, and then took off with the rifle. The three intruders left the apartment through the front door and ran back to the waiting cars. Trevino carried the rifle, Rivera carried the plate of dope, and appellant still had the AK-47. The group then got back into the cars and drove off. They drove to Perez's apartment where Rivera saw appellant change his shirt. When the group left Perez's apartment, appellant drove Rivera home in his white Pontiac.II. Non-Accomplice Evidence
Police officers arrived at apartment 95 of the Kingsgate Apartments and found a dead body in both of the apartment's bedrooms. The body of the complainant was found in the southwest bedroom. He died as a result of a gunshot wound to his chest. The police found Abelardo Sanchez's body in the southeast bedroom. Abelardo suffered five gunshot wounds. The investigating officers found a Rockets jersey on the hallway floor between the two bedrooms. They also recovered eight fired bullets and nine casings that were consistent with an AK-47 rifle. Serafin Zuniga, a witness living in a nearby apartment, provided the police with a description of one of the getaway cars, a white Pontiac, and its partial license plate number. Officers traced this car to appellant and arrested him in it the day after the murders. Houston Police Officer Curtis Scales arrested Perez on September 4, two days after the murders. During the arrest, Scales recovered an AK-47 from her closet. Subsequent testing revealed that several of the cartridge casings recovered from the murder scene were fired by the AK-47 found in Perez's closet. Several weeks later, Perez notified Scales about a white t-shirt that appellant wore during the commission of the crime. Perez told Scales that appellant had instructed her to wash it, but she threw it into her closet instead. Scales recovered the shirt from Perez. Subsequent DNA testing of the shirt revealed that a bloodstain on the shirt matched Abelardo Sanchez's DNA. In addition, a scraping of the shirt's collar produced DNA material from three contributors, with one of the three being the major contributor. DNA testing identified appellant as that major contributor. Cano testified that he was a member of SPPL, but he was not very active in the gang at the time of the murders. Cano also testified that he owned the AK-47 used in the murders. Cano recalled that he was in Katy having breakfast with his girlfriend at a Denny's restaurant the morning of September 2, 2007, when appellant called him between 10:00 a.m. and noon. Appellant asked to borrow his AK-47. Cano told appellant he could borrow the AK-47 if he wanted to come to the Denny's to get it. A short time later, appellant called Cano again to inform him he was outside in the Denny's parking lot. Cano paid for his meal and then went outside where appellant's white Pontiac was a few parking spaces away from his truck. Cano removed the AK-47 from his truck and handed it to appellant who wrapped it in something white. Appellant did not say why he wanted the AK-47 and Cano did not inquire. Following the exchange with appellant, Cano went to his girlfriend's home in Katy. Cano specifically testified that he was not present when the murders occurred.DISCUSSION
In two issues on appeal, appellant asserts the trial court erred (1) when it denied his motion for instructed verdict because there was insufficient evidence to corroborate the testimony of accomplice witnesses Jessica Perez and Joe Rivera; and (2) when it allowed a DNA analyst to offer expert testimony about DNA test results in violation of the Confrontation Clause. We address each issue in turn.I. Corroboration of Accomplice Witness Testimony
We begin by addressing whether the accomplice witness testimony of Perez and Rivera is sufficiently corroborated to serve as a basis for appellant's conviction. A conviction cannot be secured upon the testimony of an accomplice witness unless corroborated by other evidence tending to connect the defendant to the offense. Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006). Article 38.14 of the Texas Code of Criminal Procedure provides: "A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Delacruz v. State, 278 S.W.3d 483, 487 (Tex. App.-Houston [14th Dist.] 2009, pet. ref'd) (quoting Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005)). The Court of Criminal Appeals, in interpreting Article 38.14, has held it is not necessary that the corroborating evidence directly connect the defendant to the crime or that it be sufficient by itself to establish guilt; the corroborating evidence need only tend to connect the defendant to the offense. Id. (citing Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999); McDuff v. State, 939 S.W.2d 607 (Tex. Crim. App. 1997)). When determining whether non-accomplice evidence tends to connect a defendant to the offense, the Court of Criminal Appeals has stated that the evidence must simply link the accused in some way to the commission of the crime and show that rational jurors could conclude that the evidence sufficiently tended to connect the defendant to the offense. Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009). When analyzing a challenge to the sufficiency of corroborative evidence, an appellate court views the evidence in the light most favorable to the jury's verdict. Brown v. State, 270 S.w.3d 564, 567 (Tex. Crim. App. 2008). Thus, when there are conflicting views of the evidence, one tending to connect the defendant to the offense and one that does not, a reviewing court will defer to the factfinder's resolution of the evidence. Id. For that reason, "it is not appropriate for appellate courts to independently construe the non-accomplice evidence." Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011). The test for sufficient corroboration of accomplice testimony is to eliminate from consideration the accomplice testimony and then examine the other inculpatory evidence to ascertain whether the remaining evidence tends to connect the defendant with the offense. Delacruz, 278 S.W.3d at 487. A reviewing court cannot examine the corroborating evidence piecemeal; instead it must consider the combined force of all of the non-accomplice evidence that tends to connect the defendant to the offense. Smith, 332 S.W.3d at 442. When examined in that light, the cumulative effect of suspicious circumstances may be enough to tend to connect the defendant to the charged offense even if they are insufficient to do so when examined individually. Yost v. State, 222 S.W.3d 865, 872 (Tex. App.-Houston [14th Dist.] 2007, pet. ref'd). Viewed collectively, even otherwise insignificant incriminating circumstances may tend to connect a defendant to a crime he is accused of committing. Id. Thus, proof that the accused was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction. Smith, 332 S.W.3d at 443. After eliminating the accomplice witness testimony recounted above, we conclude that the non-accomplice evidence was sufficient to tend to connect appellant to the murder of the complainant. This evidence includes the t-shirt recovered from Perez's apartment. Subsequent testing of this shirt revealed a bloodstain containing the DNA of Abelardo Sanchez, the other person killed in apartment 95 on September 2, 2007. In addition, scrapings taken from the collar of the shirt were tested. The results revealed three contributors. The testing also established that appellant was the only major contributor. The presence of appellant's DNA and the DNA of the murder victim shot and killed mere feet away from the spot where the complainant was murdered tends to connect appellant to the complainant's murder. See Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002) (clothes containing the blood of the victim's boyfriend who was present in the room where the murder occurred that were found in the trunk of defendant's vehicle corroborated accomplice's testimony); see also Barnes v. State, 62 S.W.3d 288, 301 (Tex. App.-Austin 2001, pet. ref'd) (holding that accomplice's testimony implicating the defendant in a masked robbery was corroborated by circumstantial evidence and a discarded ski mask containing DNA matching the defendant's profile that was found a few hundred yards away from the scene of the crime). Appellant's contention that the DNA evidence derived from the collar scrapings is not corroborative because there were at least two other DNA contributors is without merit. First, appellant was the only major contributor. Second, the evidence is viewed in the light most favorable to the verdict. Brown, 270 S. W.3d at 567. So when there are two permissible views of the evidence, one that tends to connect the defendant to the offense and one that does not, appellate courts adopt the interpretation that is more favorable to the verdict. Simmons, 282 S.W.3d at 508. As such, the presence of other people's DNA on the shirt collar does not diminish the corroborative nature of the DNA evidence. It still tends to connect appellant to the murders. In addition, Cano's testimony, when combined with other non-accomplice evidence, tended to connect appellant to the murder. Cano testified that appellant called him on the day of the murders between 10:00 a.m. and noon. Appellant told Cano he needed to borrow his AK-47 and indicated he was coming to get it. About twenty minutes later, appellant arrived in his white Pontiac at Cano's location in Katy and picked up Cano's AK-47. The murders took place a short time after appellant obtained the AK-47. The police found an AK-47 in Perez's apartment when they arrested Perez a few days after complainant's murder. Cano identified that AK-47 as the gun he gave appellant on September 2, 2007 in the Katy parking lot. The police recovered numerous shell casings in apartment 95 during their investigation of the murders. These shell casings were consistent with an AK-47 rifle. Donna Eudaley, the State's firearms expert testified testing revealed that several of the cartridge casings recovered from the murder scene were fired by the AK-47 found in Perez's closet. The non-accomplice evidence therefore reflects that appellant sought out and acquired the murder weapon right before the murders occurred. Appellant's possession of the murder weapon immediately before the crime's commission is evidence that tends to connect him to the murders. Herron v. State, 86 S.W.3d 621, 633-34 (Tex. Crim. App. 2002) (defendant's possession of murder weapon was factor tending to connect him to murder); Cathey, 992 S.W.2d at 462-63 (defendant's possession of murder weapon one month after offense's commission was factor tending to connect him to murder); Ayers v. State, 879 S.W.2d 176, 178 (Tex. App.-Houston [14th Dist.] 1994, no pet.) ("Possession of the murder weapon is proper corroborative evidence because it tends to connect the accused with the offense in which the weapon was used."). We conclude that a rational jury could find that the above non-accomplice evidence tends to connect appellant to the offense. We overrule appellant's first issue on appeal.II. Confrontation Clause
Appellant's second issue deals with the testimony of Robin Freeman, a forensic scientist and DNA analyst. At the time of trial Freeman worked as the DNA Interpretation Manager for the Harris County Institute of Forensic Sciences, formerly known as the Harris County Medical Examiner's Office. Prior to that position, Freeman worked as the forensic director of Identigene, a private DNA testing lab that contracted with the Houston Police Department to perform DNA analysis work. Freeman recalled receiving appellant's t-shirt from the Houston Police Department. Freeman testified that a DNA analysis revealed that the DNA from a stain on appellant's t-shirt matched Abelardo Sanchez. Freeman also testified that scrapings from the shirt collar yielded a DNA mixture from at least three people, with one of the DNA contributors being a major contributor. Regarding the DNA testing procedures, Freeman explained that DNA testing is "done in a batch process." In other words, DNA testing involves several steps and different analysts perform these different steps in the process. Using various instruments and chemical reagents, one person performs the extraction process, another analyst conducts the "quantitations," and a third analyst does the amplification and loads the data onto the instrument. As the lab director, Freeman testified she is qualified to perform all of these steps and that she supervised the analysts who actually performed each step in the batch process. From the raw data generated by these preliminary steps, Freeman compiled the data and performed the analysis that led to her opinions on the DNA evidence. Freeman was responsible for interpreting and comparing the DNA data. Based on Freeman's interpretation of the compiled data, she formed the opinions from which she testified about the DNA evidence during appellant's trial. In Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held the Sixth Amendment confrontation right applies not only to in-court testimony, but also to out-of-court statements that are testimonial in nature. Wood v. State, 299 S.W.3d 200, 207 (Tex. App.-Austin 2009, pet. ref'd) (citing Crawford, 541 U.S. at 51). The Confrontation Clause forbids the admission of testimonial hearsay unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. Id. Five years later, in Melendez-Diaz v. Massachusetts, the defendant was on trial for selling cocaine. Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 2531, 174 L.Ed.2d 314 (2009). During the trial, prosecutors offered affidavits from the lab technicians to prove that the substance in question was cocaine. Id. at 2531. Unlike the case at bar, no expert witness took the witness stand in Melendez-Diaz. The Supreme Court held that the affidavits were a "core class of testimonial statements" covered by the Confrontation Clause. Id. at 2532. The Supreme Court then held that the technicians who prepared the affidavits were witnesses the defendant had a right to confront. Id. In his second issue on appeal, appellant contends his Sixth Amendment right to confront the witnesses against him was violated when Freeman testified about DNA test results when other, non-testifying analysts were involving in the testing. Appellant claims Freeman's reliance on results reached by other analysts denied him the right of confrontation in violation of Melendez-Diaz v. Massachusetts. This issue is not new as it has been previously addressed in published opinions by at least two courts of appeal. In Hamilton v. State, the San Antonio Court of Appeals was faced with the question "whether an expert witness who offers his opinion based in part on lab work performed by another violates the Confrontation Clause. . . ." Hamilton v. State, 300 S.W.3d 14, 21 (Tex. App.-San Antonio 2009, pet. ref'd). The court then examined Melendez-Diaz and initially determined that the precise issue before it was not addressed by the Supreme Court in that case. It went on to conclude that "the Supreme Court would hold records or information created by personnel that play a role in the analysis that leads to the expert's opinion are not testimonial." Id. It then held that an expert's opinion "based on data generated by scientific instruments operated by other scientists, did not violate the Confrontation Clause." Id. at 22. In Settlemire v. State, a DWI case, the Fort Worth Court of Appeals faced the issue of whether the admission of breath test results and intoxilyzer machine maintenance logs into evidence through the testimony of a supervisor who did not conduct the breath test or perform the maintenance violated the Confrontation Clause. Settlemire v. State, 323 S.W.3d 520, 521 (Tex. App.-Fort Worth 2010, pet. ref'd). As in this case, the defendant cited Melendez-Diaz in support of his argument the trial court's decision to admit the records violated the Confrontation Clause. The court then stated:Here, the individual, . . . who testified about the intoxilyzer's status although she did not supervise it at the time of Settlemire's intoxilyzer test, is precisely the type of analyst that the Court anticipated might be challenged based on its holding in Melendez-Diaz. The Court made clear, however, that it did not intend its holding to "sweep [] away an accepted rule governing the admission of scientific evidence." Id. at 2533.
We shall not construe Melendez-Diaz as doing what the Court clearly stated it was not doing. We hold Settlemire's rights of confrontation were not violated.Id. at 522. In addition, in an unpublished opinion, this court reached the same result. In Oliver v. State the defendant argued "his Sixth Amendment right to confront the witnesses against him was violated because [the expert witness] testified concerning DNA testing performed by other analysts." Oliver v. State, No. 14-09-00690-CR, 2010 WL 3307391, at *3 (Tex. App.-Houston [14th Dist.] August 24, 2010, no pet.) (op., not designated for publication). Initially we distinguished Melendez-Diaz by determining it "did not specifically address the issue at bar-whether the Confrontation Clause is violated if an expert offers oral opinion testimony based in part on work performed by another who does not testify." Id. We then addressed the specific facts before the court:
In the present case, Green testified the medical examiner's office employs a procedure termed "batch testing" when testing DNA. She explained that in "batch testing," numerous analysts test the genetic matter in an assembly-line-type process. The tests of the materials in this case were performed by approximately fifteen analysts using machines.
As in Washington and Hamilton, here, the machines generated raw-data results, and Green used those results to form the basis of her opinion-that appellant was a contributor. Applying the holdings of Washington and Hamilton here, we conclude the raw-data reports are not testimonial. Thus, the Confrontation Clause was not violated by Green's testimony.Id. at *4 (internal citations omitted). We find the reasoning in these cases persuasive and adopt it here. Like the testifying experts in the above cases, Freeman offered her expert opinion after she personally compiled the DNA data supplied by non-testifying analysts, interpreted it, and performed the comparative analysis. An expert witness who offers her opinion based in part on lab work performed by another does not violate the Confrontation Clause. Hamilton, 300 S.W.3d at 21-22. Thus, we hold Freeman's reliance on data retrieved by some of her lab colleagues did not render her expert opinions inadmissible and the trial court did not err when it allowed her to testify. We overrule appellant's second issue.