# Curtis v. State > Court of Appeals of Texas · August 31, 2006 · 205 S.W.3d 656 URL: https://www.frixlaw.com/law-library/cases/9730923 ## Case - **Full name:** Clifton Earl CURTIS, Appellant v. the STATE of Texas, State - **Court:** Court of Appeals of Texas - **Decided:** August 31, 2006 - **Citations:** 205 S.W.3d 656; 2006 Tex. App. LEXIS 7790; 2006 WL 2507437 - **Precedential status:** Published - **Opinion:** Dissent by Dauphinot - **Judges:** Dauphinot, Holman, Gardner - **Cited by:** 16 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9730923 ## Opinion text LEE ANN DAUPHINOT, Justice dissenting. I must respectfully dissent from the majority’s disposition of Appellant’s third and fourth points because the majority appears to misconstrue Appellant’s purpose for offering the evidence that the trial court excluded. As the majority concedes, The DNA evidence that Appellant had sexual intercourse with King [the complainant] ... was the same evidence and virtually the only evidence that pointed to Appellant as King’s killer. The fact of King’s death by strangulation was the key evidence tending to prove that Appellant sexually assaulted her, as opposed to engaging in consensual intercourse with her. If Appellant engaged in sexual intercourse with King days before death rather than at the time of her death, then the only reasonable and logical conclusion to be drawn from the evidence is that he neither sexually assaulted her nor killed her. It is the combination of Appellant’s DNA on King’s body and the circumstances of King’s death that points to aggravated sexual assault as the crime and to Appellant as the perpetrator. Thus, if the medical examiner’s testimony suggests that Appellant could have had sexual intercourse with King as many as four days before her death, then it suggests that he committed no crime at all. 1 *664 The State offered Aliece Watts as both a fact witness and an expert witness to lay the predicate for admissibility of the DNA evidence. Watts had packaged and tested the DNA samples that connected Appellant to the case now before this court. Watts testified that Appellant alone donated the only DNA present in the vaginal and perineal swabs from the complainant. Yet Charles Moody admitted that he had sexual intercourse with the complainant on the night that she was killed and that he had ejaculated. Nothing other than Watts’s testimony about the DNA tied Appellant to the sexual assault of the complainant. The deputy medical examiner, Marc Krouse, testified that the complainant had been dead at least sixteen to eighteen hours at the time his office examined her, but that he could not determine when, in relation to her death, the semen, which Watts linked only to Appellant, had been deposited. Krouse testified that the semen could have been as much as four days old at the time of his examination. The proponent of the scientific evidence bears the burden of demonstrating by clear and convincing evidence that the evidence is reliable. 2 “This is accomplished by showing: (1) the validity of the underlying scientific theory; (2) the validity of the technique applying the theory; and (3) proper application of the technique on the occasion in question.” 3 Watts discussed the development of DNA testing in general, the history of DNA testing in the Fort Worth Police Crime Lab, and the procedure that she claimed to have followed generally and specifically as related to the case now before this court. Appellant objected that Watts had not been qualified as an expert in this field. The trial court overruled the objection and granted Appellant’s request for a running objection to all such testimony by Watts. The defense also attempted to inform the jury of ongoing problems with mislabeling and mishandling of evidence through the testimony of Treva Armstrong, who had worked in the crime lab, although she was not there at the time Watts performed the specific tests regarding Appellant. Armstrong was qualified as an expert and prepared to testify to persistent problems with the lab equipment and to recurring problems in procedure and methodology that compromised the validity of the testing done in the lab and the integrity of the samples that were received and stored. Armstrong was also prepared to testify about the contents of an affidavit regarding her concerns with Watts and the crime lab that she had prepared in 2002 in response to the chief of police’s request. The affidavit’s contents stated her concern about the large number of cases that were uncompleted at the time. It stated that Watts was working on nine to eleven cases simultaneously. Armstrong stated that Watts had only completed two of these and that [o]ne of the two cases had to be completely repeated due to lack of good judgment and/or poor quality.... The other case had to be taken outside of the lab to an independent DNA expert because [Watts and another employee] could not come to an agreement as to the results of [Watts’s] testing. *665 “The other remaining DNA cases that Mrs. Watts started back in 2001 have either pled and/or been reworked.” The affidavit stated that Watts consistently gave false impressions to defendants and/or their attorneys about how far along their testing process was. Jaime King testified that she had worked with Watts in the Fort Worth Crime Lab and that sometime during the period of October 1995 to January 1996, King had performed DNA testing on the vaginal swab and the perineal swab of Gloria King using the RFLP method. Because “there was a lot of degradation, it wasn’t a very good quality sample,” so King obtained no results from testing those two items. Watts performed another kind of DNA testing on the Gloria King swabs in 1995, 1996, and 1998 and still obtained no results. Watts also admitted to errors in recording dates, procedures, and results of testing. Watts also testified that she was working on several cases at the same time. Finally, in October 1998, the Fort Worth Crime Lab turned over the testing in this case to GeneScreen. The problems of quality control in the lab were so serious that both the district attorney’s office and the police conducted an investigation of the lab. The defense attempted to challenge the reliability of Watts’s announced testing results by showing, through Armstrong’s testimony, that the lab equipment was faulty, that contamination of samples was a pervasive problem, that Watts often did not follow proper protocol, that Watts often made mistakes in procedure, that she consistently misled defendants and/or their attorneys about the status of the testing process, that she had too many uncompleted cases and worked on too many cases at the same time, and that her work often had to be reworked or sent to an outside lab. The defense also attempted to use Armstrong’s testimony to show Watts’s bias in reporting results that would benefit the prosecution. Clearly, the credibility of an expert witness is a material issue, 4 whether the credibility is challenged by showing a history of misleading statements that benefited one side to the detriment of the other, a failure to follow proper protocol, carelessness in performing testing and/or reporting of results, or a history of errors resulting in compromised results. The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. 5 The right of confrontation encompasses more than the opportunity to physically confront the witnesses. 6 A primary interest secured by the Confrontation Clause is the right of cross-examination. 7 Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. 8 The cross-examiner not only is permitted to delve into the witness’s story to test the witness’s perceptions and memory, but also is traditionally allowed to *666 impeach, that is, discredit, the witness. 9 Consequently, the right to cross-examine a testifying State’s witness extends to any matter that could reflect on the witness’s credibility. 10 This right therefore includes impeaching the witness with relevant evidence that might reflect bias, interest, prejudice, inconsistent statements, traits of character affecting credibility, or impairment or disability affecting the witness’s credibility. 11 The trial judge should allow the accused great latitude to show any relevant fact that might tend to affect the witness’s credibility. 12 Appellant should have been allowed to impeach the reliability of Watts’s work, the likelihood of contamination of samples, and the reliability of the quality of the samples she provided GeneScreen through the affidavit and through Armstrong’s testimony. Just as an expert’s appraisal reports for comparable properties prepared for prior condemnation proceedings were relevant and discoverable to show his bias in a subsequent appraisal, 13 Watts’s pattern of errors and improper protocols in other cases were relevant and admissible to impeach her credibility as a fact witness and an expert witness. Because the majority does not so hold, I must respectfully dissent. . Majority op. at 663. . Jackson v. State, 17 S.W.3d 664, 670 (Tex.Crim.App.2000). .Id. (citation omitted). . Cf. Ex parte Shepperd, 513 S.W.2d 813, 816 (Tex.1974) (in condemnation case, holding that other appraisals of similar property are discoverable because they are material to the issue of the appraiser’s credibility). . U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36, 42 , 124 S.Ct. 1354, 1359 , 158 L.Ed.2d 177 (2004); Davis v. Alaska, 415 U.S. 308, 315 , 94 S.Ct. 1105, 1110 , 39 L.Ed.2d 347 (1974); Rankin v. State, 41 S.W.3d 335, 344 (Tex.App.-Fort Worth 2001, pet. ref’d). . Davis, 415 U.S. at 315 , 94 S.Ct. at 1110 . . Id. . Mat 316, 94 S.Ct. at 1110 . . Id. . Virts v. State, 739 S.W.2d 25, 28-29 (Tex.Crim.App.1987). . Id. at 29 ; Rankin, 41 S.W.3d at 345 ; Alexander v. State, 949 S.W.2d 772, 774-75 (Tex.App.-Dallas 1997, pet. ref'd). . Virts, 739 S.W.2d at 29 ; Koehler v. State, 679 S.W.2d 6, 9 (Tex.Crim.App.1984). . Shepperd, 513 S.W.2d at 816 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9730923. Public record. Not legal advice.