Juan Manuel Campos v. State

Affirmed and Opinion filed May 27, 2008

Affirmed

and Opinion filed May 27, 2008.

In The

Fourteenth Court of

Appeals

____________

NO. 14-07-00014-CR

____________

JUAN MANUEL CAMPOS , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 23rd

District Court

Brazoria County, Texas

Trial Court Cause No. 42,918

O P I N I O N

Appellant Juan Manuel Campos appeals his conviction for

aggravated assault. In three issues, appellant complains the trial court erred

in making certain evidentiary rulings and in allowing the jury to make an

affirmative finding that appellant used his feet as a deadly weapon. We

affirm.

I. Background

Appellant and Hai Son Nguyen were inmates at the Clemens

Unit of the Texas Department of Criminal Justice in Brazoria County, Texas. On

May 22, 2000, a fight broke out after some inmates attacked Nguyen. Although

the inmates = accounts of what happened differed at trial, four

inmates testified that they saw appellant jumping on Nguyen = s head after

Nguyen had fallen to the floor. Nguyen suffered brain injuries as well as

multiple stab wounds and died at a Galveston hospital several hours later.

According to the medical examiner = s trial testimony,

Nguyen sustained fatal stab wounds, as well as a severe brain injury that may

also have caused his death.

In his first two issues, appellant maintains the trial

court violated his confrontation rights by allowing the medical examiner to

testify regarding an autopsy report that he did not author and a DNA chemist to

testify regarding a DNA analysis report that she did not author. In his third

issue, appellant contends that because the indictment did not allege appellant

used his feet as a deadly weapon, he was not given notice that the State would

seek an affirmative finding to that effect, and thus the trial court erred in

submitting that issue to the jury.

II. Analysis

A.

Confrontation Clause

In his first issue, appellant complains that his inability

to cross examine the medical examiner who prepared the autopsy report violated

his Sixth Amendment right to confrontation. In his second issue, appellant

claims his inability to cross examine the DNA chemist who performed the DNA

analysis violated his confrontation rights. The State replies that appellant

waived error with respect to these issues, and that even if appellant preserved

error, the trial court did not err in admitting the testimony.

1. Preservation of Error

To preserve a complaint for appellate review, the

complaining party must state the grounds for the desired ruling to the trial

court A with sufficient

specificity to make the trial court aware of the complaint, unless the specific

grounds were apparent from the context. @ Tex. R. App. P. 33.1(a)(1)(A); Reyna v. State , 168 S.W.3d 173,

177 (Tex. Crim. App. 2005). The trial court must have ruled on the request,

objection, or motion, either expressly or implicitly, or the complaining party

must have objected to the trial court = s refusal to rule.

Tex. R. App. P. 33.1(a)(2).

The State argues that appellant waived error with respect

to admission of underlying facts contained in the autopsy report and DNA

analysis report because he failed either to raise an objection each time the

inadmissible evidence was offered or obtain a running objection. See Valle

v. State , 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). The State offered

testimony by medical examiner Dr. Stephen Pustilnic regarding Nguyen = s injuries. Dr.

Pustilnic based his testimony on the autopsy report prepared by his

predecessor. The report itself was never admitted into evidence. Before Dr.

Pustilnic began testifying to the injuries in the autopsy report, appellant

objected that A [t]his witness has no personal knowledge. @ The trial court

overruled this objection. After Dr. Pustilnic testified to the stab wounds

documented in the autopsy report, appellant again objected: A Your Honor, at

this time I = m going to object to any further line of this

testimony as violated from our confrontation rights of the person who actually

performed the procedures [sic]. @ The court overruled appellant = s second

objection.

The

State later called Christy Smejkal, supervisor of the Texas Department of

Safety DNA Crime Lab, to testify about facts contained in a DNA analysis report

prepared by Kristi Wimsett, a subordinate who was out on maternity leave. At

the beginning of Smejkal = s testimony, appellant requested permission to take the

witness on voir dire. After determining that Smejkal did not author the DNA

report, appellant objected: A Your Honor, I = d object to this witness testifying about these results

because she is not the one that performed the examination; and two, I would

object because it violates my client = s confrontation rights to allow C under the Constitutions to allow this

evidence to be entered in this fashion. @ The trial court overruled appellant = s objection.

Although the law in Texas generally requires a party to continue to object

each time inadmissible evidence is offered, a continuing or running objection

may also suffice to preserve error. Ethington v. State , 819 S.W.2d 854,

858 (Tex. Crim. App. 1991). A continuing objection preserves error when it is

timely, provides the basis for the ruling, and states the ruling desired from

the court. Id. at 859 . Appellant was clearly objecting on confrontation

grounds to the entire testimony by Dr. Pustilnic and Smejkal on facts contained in reports they

did not author .

Further, the objections were timely and stated the desired ruling from the trial

court . We find appellant = s objections to Dr. Pustilnic = s and Smejkal = s testimony

sufficient to preserve error. See Ford v. State , 919 S.W.2d 107 , 113 B 14 (Tex. Crim. App. 1996) (holding

that even though appellant failed to object each time objectionable evidence

was offered, appellant preserved error by requesting that his objection extend

to any witness who testified regarding the matter ).

2. No Confrontation Clause Violation

The A testimonial statements @ of witnesses

absent from trial are admissible over a Sixth Amendment Confrontation Clause

objection only when the declarant is unavailable and the defendant has had a

prior opportunity to cross examine the declarant. See Crawford v.

Washington , 541 U.S. 36, 68 (2004). Post‑ Crawford , the

threshold question in any Confrontation Clause analysis is whether the

statements at issue are testimonial or nontestimonial in nature. Spencer v.

State , 162 S.W.3d 877, 879 (Tex. App. C Houston [14th

Dist.] 2005, pet. ref = d). We review a constitutional legal

ruling, such as whether a statement is testimonial, de novo. Wall v. State ,

184 S.W.3d 730, 742 (Tex. Crim. App. 2006). By contrast, we review a trial

court = s admission or

exclusion of evidence for an abuse of discretion. Torres v. State , 71

S.W.3d 758, 760 (Tex. Crim. App. 2002). A trial court does not abuse its

discretion, and we will not reverse a trial court = s ruling, unless

the ruling falls outside the zone of reasonable disagreement. Id. A

trial court abuses its discretion when it acts without reference to any guiding

rules and principles or acts arbitrarily or unreasonably. Montgomery v.

State , 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

The United States Supreme Court did not explicitly define

the term A testimonial @ in Crawford .

However, the Court did state that A [w]hatever else

the term covers, it applies at a minimum to prior testimony at a preliminary

hearing, before a grand jury, or at a former trial; and to police

interrogations. @ Crawford , 541 U.S. at 68 . In Davis

v. Washington , the Court elaborated on the holding of Crawford and

held that in the context of police interrogations, statements are

nontestimonial when made under circumstances objectively indicating that the

primary purpose of the interrogation is to enable police assistance to meet an

ongoing emergency. 547 U.S. 813, 822 (2006). Statements are testimonial when

the circumstances objectively indicate that there is no such ongoing emergency

and that the primary purpose of the interrogation is to establish or prove past

events potentially relevant to later criminal prosecution. Id.

In determining whether records are testimonial under Crawford ,

Texas courts have distinguished various types of records containing subjective

observations pertinent to the accused = s guilt or

innocence from those that merely relate objective or historical information. See

Russeau v. State , 171 S.W.3d 871 , 880 B 81 (Tex. Crim.

App. 2005); Ford v. State , 179 S.W.3d 203, 209 (Tex. App. C Houston [14th

Dist.] 2005, pet. ref = d), cert. denied , 127 S. Ct.

281 (2006). In Russeau , the Court of Criminal Appeals held that because

the inmate discipline and incident reports contained written observations made

by correctional officers, the reports were testimonial within the meaning of Crawford .

See Russeau , 171 S.W.3d at 880 B 81. In Ford v.

State , we distinguished Russeau and held that because the

inmate disciplinary records were sterile recitations of the appellant = s offenses and the

punishments he had received for those offenses, they were not testimonial. See

Ford , 179 S.W.3d at 209 . [1]

We further clarified our holding in Ford in Grant v. State ,

explaining that whether a report was testimonial did not depend solely on the

inclusion or omission of detailed and graphic personal observations, but rather

on the extent to which the records are either sterile recitations of fact or a

subjective narration of events related to the appellant = s guilt or

innocence. See Grant v. State , 218 S.W.3d 225 , 230 B 31 (Tex. App. C Houston [14th

Dist.] 2007, pet. ref = d).

In his first issue, appellant argues that the admission of

Dr. Pustilnic = s testimony to facts in the autopsy report violated

his confrontation rights because the report was testimonial and appellant had

no opportunity to cross examine the report = s author. At

least three Texas courts have determined that autopsy reports are

nontestimonial in nature. See Terrazas v. State , No. 03‑05‑00344‑CR,

2006 WL 2080381 , at *5 (Tex. App. C Austin July 28,

2006, pet. ref = d) (mem. op., not designated for publication) (holding

introduction of autopsy report did not violate Confrontation Clause, in part

because report contained factual statements setting forth matters observed

pursuant to duty imposed by law); Mitchell v. State , 191 S.W.3d 219 , 221 B 22 (Tex. App. C San Antonio 2005,

pet. ref = d) (holding autopsy report was

nontestimonial because report did not fall within categories of testimonial

evidence described in Crawford ) ; Denoso v. State , 156 S.W.3d 166,

182 (Tex. App. C Corpus Christi 2005, pet. ref = d) (same). Although this court has not

addressed this issue directly, in Grant we acknowledged that if the

testimonial nature of records turned on the presence of A detailed and

graphic observations, @ then A autopsy reports

would be considered testimonial, yet this is not the case. @ See Grant ,

218 S.W.3d at 231 (citing Mitchell , 191

S.W.3d at 221 B 22 and Denoso , 156 S.W.3d at 182 ).

Based on the rationale in these cases, we conclude the

autopsy report at issue contains a sterile recitation of facts and is

nontestimonial within the meaning of Crawford and Davis . [2]

See Grant , 218 S.W.3d at 231 B 32; Ford ,

179 S.W.3d at 209 . The report provides objective facts regarding Nguyen = s injuries and the

cause of his death. The information is routine, descriptive, and

nonanalytical; the report does not relate subjective narratives pertaining to

appellant = s guilt or innocence. See Grant , 218 S.W.3d at

231 . Because the autopsy report is nontestimonial and because appellant

had an opportunity to cross examine Dr. Pustilnic, we conclude that admitting

Dr. Pustilnic = s testimony to the information contained in the report

did not violate appellant = s right to confrontation. See Pierce

v. State , 234 S.W.3d 265, 269 (Tex. App. C Waco 2007, pet.

ref = d) (holding

inability to confront and cross examine autopsy report author did not violate

right to confrontation because appellant had opportunity to confront

pathologist who testified regarding report); see also Grant , 218 S.W.3d

at 231 ; Mitchell , 191 S.W.3d at 221 B 22; Denoso , 156 S.W.3d at 182 . We overrule

appellant = s first issue.

In his second issue, appellant argues that the DNA report

that was the basis of Smejkal = s testimony was a testimonial statement

because it was made under circumstances that would lead an objective witness to

reasonably believe the statement would be used at a later trial. At trial,

Smejkal testified that her subordinate took blood samples from appellant = s and Nguyen = s jumpsuits and

created DNA profiles from each sample. Using transparency copies of the

profiles produced by her predecessor, Smejkal compared the DNA profiles for the

jury. These copies were admitted into evidence. Smejkal testified she agreed

with the results the subordinate reached in conducting the analysis and that A Nguyen [could not]

be excluded as a contributor @ to the blood stain found on the leg of

appellant = s jumpsuit.

Appellant = s second issue C whether a DNA

report is testimonial under Crawford C presents a matter

of first impression for this court; appellant does not refer us to any Texas

cases addressing this issue. To our knowledge, only one Texas court has

addressed a Confrontation Clause objection to the admission of a DNA report. [3]

See Johnson v. State , No. 05‑05‑00848‑CR, 2006 WL

1738288 , at *3 (Tex. App. C Dallas June 27, 2006, pet. ref = d) (not designated

for publication). In Johnson , the Dallas Court of Appeals faced a

situation almost identical to the instant case. See id. The Johnson

court concluded that admission of a forensic biology report containing DNA

profiles, through testimony by a medical examiner who was not the preparer of

the report, did not violate the Confrontation Clause. Id. at *3 B 4. The court

reasoned that because the report contained information collected during the

investigation of a crime scene, set forth matters observed pursuant to a duty

imposed by law, and did not accuse the appellant of any wrongdoing, the report

was not testimonial within the meaning of Crawford . Id. at *3.

Following Davis , other jurisdictions dealing

specifically with the admission of DNA reports where the report = s author does not

testify have concluded that the reports are not testimonial within the meaning

of Crawford and Davis . [4]

We find the rationale applied in two of these cases, People v. Geier and

People v. Rawlins , instructive. See People v. Geier , 161 P.3d

104, 140 (Cal. 2007); People v. Rawlins , ___ N.E.2d ___, 2008 WL 423397 ,

at *11 B 12 (N.Y. Feb. 19,

2008). Both Geier and Rawlins interpreted Davis as

requiring courts to focus on the circumstances under which the allegedly

testimonial statement was generated. See Geier , 161 P.3d at 140 ( A Davis . . . requires us

to consider the circumstances under which the statement was made. @ ); Rawlins ,

2008 WL 423397 , at *8 ( A The force of Davis is that context

matters . . . . @ ). In Geier , the defendant

objected on confrontation grounds to admission of a DNA report, through

testimony by the prosecution = s DNA expert, because the technician who

actually conducted the analysis did not testify. Geier , 161 P.3d at

133 . The Geier court observed that (1) the report was generated

pursuant to a standardized, scientific protocol, (2) the analysis was performed

as part of the technician = s job and not in order to incriminate the

defendant, (3) the report recounted the procedures used to analyze the DNA

samples, (4) the DNA analysis was not accusatory because the results had the

power to exonerate as well as convict, and (5) the accusatory opinion that the

defendant = s DNA matched a sample taken from the victim was

reached and conveyed by the testifying DNA expert and not the non-testifying

technician who authored the report. Geier , 161 P.3d at 140 . Rawlins

also concerned admission of a DNA report through testimony by a witness other

than the report = s author. Rawlins , 2008 WL 423397 ,

at *3. The Rawlins court applied a similar analysis in reaching the

same conclusion as in Geier , but further reasoned that because A [n]either the

prosecution nor law enforcement could have influenced the outcome [of the DNA

report], @ factors such as

whether the laboratory was performing work for law enforcement or whether the

technicians knew the results could later be used at trial were

inconsequential. Id. at *11 B 12. Thus both Geier

and Rawlins concluded that given the circumstances under which the

DNA reports were generated, they did not fall within the scope of testimonial

statements described in Crawford and Davis . Geier , 161

P.3d at 140 ; Rawlins , 2008 WL 423397 , at *11.

We agree with the approach of Geier and Rawlins

and the analysis formulated by the Dallas Court of Appeals in Johnson .

Smejkal testified in detail as to the standard operating procedures the

laboratory follows when performing DNA testing. The DNA report consisted of

raw data C DNA profiles

obtained from blood found on appellant = s and Nguyen = s jumpsuits. By

following established protocols, the DNA profiles were generated as part of a

routine process meant to ensure accurate analysis. Because the report provided

factual evidence which had the potential to support appellant = s conviction or

exonerate him, it was not accusatory. The DNA report was thus neutral: the DNA

profiles shed no light on appellant = s guilt absent an

expert opinion as to what those profiles revealed. It was left to Smejkal to

draw from this evidence the inference that the victim = s DNA matched DNA

found on appellant = s jumpsuit. Smejkal testified that she

agreed with the results the technician reached in performing her analysis and

that Nguyen could not be excluded as a contributor to the blood stain found on

appellant = s jumpsuit. [5]

Appellant had ample opportunity to cross examine Smejkal regarding the

inferences and conclusions she drew from the DNA profiles. We conclude the

report did not testify or bear witness against appellant within the meaning of Crawford

and Davis . See Davis , 547 U.S. at 823 B 24. Accordingly,

admission of the report and Smejkal = s testimony did

not violate appellant = s confrontation rights. See Geier ,

161 P.3d at 140 ; Rawlins , 2008 WL 423397 , at *11; Johnson , 2006

WL 1738288 , at *3.

Because we conclude the DNA report was nontestimonial and

because appellant had an opportunity to cross examine Smejkal regarding her

opinions about the report, we find no Confrontation Clause violation.

Accordingly, we hold the trial court did not err in admitting Smejkal = s testimony and we

overrule appellant = s second issue.

B.

Deadly Weapon Finding

In his third issue, appellant claims that because the

indictment did not allege that he used his feet as a deadly weapon, appellant

received no notice that the State would seek an affirmative finding to that

effect and consequently, the trial court erred in submitting the issue to the

jury. This argument ignores Texas case law to the contrary. A defendant is

entitled to written notice that the State will seek an affirmative finding that

a deadly weapon was used during commission of the charged crime, but such

notice need not be contained in the indictment under which the defendant is

ultimately tried. Ex parte Minott , 972 S.W.2d 760, 761 (Tex. Crim. App.

1998). A defendant is simply entitled to written notice in some form that the

use of a deadly weapon will be a fact issue at trial. Id. The State

provided proper written notice to appellant in its Notice of Deadly Weapon, filed

two weeks prior to trial, that it intended to seek an affirmative finding that

appellant used his feet as a deadly weapon. We overrule appellant = s third issue.

We affirm the trial court = s judgment.

/s/ Leslie B. Yates

Justice

Judgment rendered

and Opinion filed May 27, 2008.

Panel consists of

Justices Yates, Guzman, and Price. *

Publish C Tex. R. App. P. 47.2(b).

______________________________________

* Senior Justice

Frank C. Price sitting by assignment.

[1] Texas courts have employed the A sterile recitation @

analysis in Ford to determine whether other types of records are

testimonial. See Azeez v. State , 203 S.W.3d 456, 466 (Tex. App. C Houston [14th Dist.] 2006) (holding that challenged

records reflected same sterility as those in Ford ), rev = d on other grounds , No. PD‑010‑07, ___ S.W.3d ___, 2008 WL 582353 (Tex. Crim.

App. Mar. 5, 2008); Guel‑Rivas v. State , No. 03‑06‑00762‑CR,

2007 WL 4208341 , at *3 (Tex. App. C Austin,

Nov. 30, 2007, pet. struck) (mem. op., not designated for publication) (finding

statements in sexual assault report that complainant did not have any physical

injuries were a A sterile recitation @ of

facts, and as such, nontestimonial and not subject to the Confrontation

Clause); see also In re J.R.L.G. , No. 11‑05‑00002‑CV,

2006 WL 1098944 , at *2 (Tex. App. C Eastland

Apr. 27, 2006, no pet.) (mem. op., not designated for publication) (applying

reasoning in Ford to determine that positive laboratory results from

appellant = s urinalysis screening were nontestimonial).

[2] Other jurisdictions addressing Confrontation Clause objections

to the admission of autopsy reports where the report = s author does not testify have similarly concluded the

reports are nontestimonial, albeit through a variety of rationales. See United States v. Feliz , 467 F.3d 227, 237 (2d Cir. 2006)

(holding that because they were admissible as both business and public records,

autopsy reports were nontestimonial and not subject to Confrontation Clause), cert.

denied , 127 S. Ct. 1323 (2007); People v. Moore , 880 N.E.2d 229,

235, 237 (Ill. App. Ct. 2007) (concluding that since autopsy reports should be

treated as business records, admission of autopsy report and testimony by

medical examiner who did not author report did not implicate Crawford ); State

v. Beaner , 974 So. 2d 667 , 685 B 86 (La. Ct. App. 2007) (holding autopsy report was

nontestimonial in nature and therefore admission of report without maker = s testimony did not trigger Crawford

mandate for cross examination); State v. Craig , 853 N.E.2d 621, 639

(Ohio 2006) (agreeing with majority view that because autopsy reports are

nontestimonial business records, their admission does not violate defendant = s confrontation rights), cert.

denied , 127 S. Ct. 1374 (2007); State v. Cutro , 618 S.E.2d 890, 896

(S.C. 2005) (concluding autopsy reports are similar to public records, not

testimonial, and may be admitted without violating confrontation rights). But

see Smith v. State , 898 So. 2d 907 , 916 B 17 (Ala. Crim. App. 2004)

(concluding admission of autopsy report without author = s testimony was error because it

enabled prosecution to prove an essential element of the crime without

providing defendant an opportunity to cross examine report = s author); State v. Davidson ,

242 S.W.3d 409, 417 (Mo. Ct. App. 2007) (holding that because autopsy report

was prepared for litigation, it was testimonial and admission without author = s testimony violated defendant = s confrontation rights).

[3] In Acevedo v. State , the San Antonio Court of Appeals held that

because a fingerprint report was prepared for the purpose of establishing or

proving past events potentially relevant to a later criminal prosecution, the

report was testimonial. Acevedo v. State , ___ S.W.3d ___, 2008 WL

228004, at *8 (Tex. App. C San Antonio Jan. 30, 2008, pet.

filed). However, the opinion contains

very little analysis; after quoting the A primary

purpose @ language from Davis , the court concluded the

fingerprint report was testimonial because A it

potentially provided factual evidence to support [Acevedo = s] conviction. @ Id.

at *7 B 8. We disagree that whether a report

potentially provides factual evidence to support a conviction is the sole

inquiry. If so, very few, if any, scientific reports would be

non-testimonial. As discussed further below, we believe the better reasoned

approach, and one that is consistent with the directives of Davis , is to

look at the circumstances under which the statement, or the report, was made.

[4] See also United States v. Washington , 498

F.3d 225, 232 (4th Cir. 2007) (holding drug test results obtained from

blood analysis were not testimonial under Crawford and Davis because

A statements @ in

report did not establish or prove past events); State v. O = Maley , 932 A.2d 1, 14 (N.H. 2007)

(concluding blood sample collection form and results of blood tests were

neutral and not testimonial under Davis ) ; State v.

Crager , 879 N.E.2d

745, 757 (Ohio 2007) (holding DNA reports contained raw data, did not A bear witness @ against defendant, and as such

were nontestimonial) ; cf. State v.

Lewis , 235 S.W.3d 136, 151 ( concluding expert = s testimony to results in DNA report he did not author was

admissible because expert did not communicate any out of court statements made

by author) . But see Thomas v. United

States , 914 A.2d 1, 12 (D.C. 2006) (concluding report analyzing substance

as cocaine constituted A core @ testimonial

statement under Davis ), cert. denied , 128 S.Ct. 241 (2007); State v. March , 216 S.W.3d 663 , 666 B 67 (Mo.) (concluding laboratory

report prepared for purpose of prosecuting defendant was testimonial under A primary purpose @ test of Davis ), cert.

dismissed , 128 S. Ct. 1441 (2007); State v. Kent , 918 A.2d

626, 640 (N.J. Super. Ct. App. Div. 2007) (applying Crawford and Davis

to conclude defendant was constitutionally entitled to cross examine

declarants who prepared blood certificate and laboratory reports) .

[5] In making this statement regarding Nguyen, Smejkal

read from a document prepared by Wimsett, the subordinate technician who

actually performed the DNA analysis. Apparently, Wimsett documented her

conclusion that Nguyen could not be excluded as a source of the blood on

appellant = s jumpsuit. However, this written portion of the

report was not admitted into evidence, and although Smejkal read from Wimsett = s report in testifying, Smejkal also stated

unequivocally her own conclusion that Nguyen was a likely source of the blood

on appellant = s jumpsuit.