Opinion issued July 11, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-17-00860-CR ——————————— DURON ROBIN LEWIS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court Harris County, Texas Trial Court Case No. 1517015
MEMORANDUM OPINION
Duron Lewis was convicted of aggravated sexual assault and sentenced to 60
years’ confinement. See TEX. PENAL CODE § 22.021(a). In three issues, Lewis
contends that (1) the trial court abused its discretion in admitting the forensic
report of a non-testifying analyst, (2) he received ineffective assistance of counsel during the guilt-innocence phase of trial, and (3) he received ineffective assistance
of counsel during the punishment phase of trial.
We affirm.
Background
One evening in February 2014, the complainant, pseudonymously referred to
as Sarah Brown, was walking from her apartment to a nearby drugstore, when she
noticed a white car pulling up behind her. A man, later identified as Lewis, got out
of the back of the car, grabbed Brown by the arm, and forced her into the backseat
with her head positioned on the floorboard.
Inside the car, there were four men speaking both English and Spanish. They
placed a blindfold over Brown’s eyes and threatened to kill her if she did not
cooperate. The men then drove Brown to an apartment and took her to an upstairs
room. Once upstairs, the men removed Brown’s clothing, held her down, and
sexually assaulted her.
The following morning, the men dressed Brown, put her in the backseat of
the car with her head positioned on the floorboard, drove her to a parking lot, and
abandoned her there after stealing her wallet. Brown took a bus to her friend’s
house and then called her boyfriend, who picked her up and drove her to the
hospital.
2 At the hospital, Brown provided the police with a statement and underwent a
forensic examination, which revealed trauma consistent with having been sexually
assaulted. DNA samples collected from various areas of Brown’s body were sent
to Bode Laboratory for DNA analysis. Analyst S. Gault testified that male DNA
was found on swabs of Brown’s vagina, outer labia majora, labia minora, and left
breast.
Officer J. Pena with the Houston Police Department Sex Crimes Unit
reviewed the Combined DNA Index System (CODIS) Offender Report and
discovered that Lewis’s DNA positively matched DNA collected from Brown.
Officer Pena created a photographic lineup that included Lewis’s photograph. The
lineup was shown to Brown, who circled Lewis’s photo as well as the photo of a
second unrelated man, as Brown was not 100 percent certain of her identification.
Officer Valentin and Officer Daniel with the HPD Sex Crimes Unit met with
Lewis and his attorney and obtained a consensual buccal swab from Lewis. The
Houston Forensic Science Center compared the DNA profile from the swab
obtained from Lewis with the DNA profiles from the swabs obtained from Brown.
Lewis could not be excluded as a possible contributor to the male DNA
profile from the vaginal swabs. The probability that a randomly chosen unrelated
individual would be included as a possible contributor was approximately 1 in 22
quintillion for African Americans. (Lewis is black.) Lewis could not be excluded
3 as a possible contributor to the major component of the DNA mixture from the
outer labia majora swabs. The probability that a randomly chosen unrelated
individual would be included as a possible contributor to the major component of
the DNA mixture was approximately 1 in 68,000 African Americans. Finally,
Lewis could not be excluded as a possible contributor to the DNA mixture
obtained from the labia minora swabs. The probability that a randomly chosen
unrelated individual would be included as a possible contributor was
approximately 1 in 46 quadrillion for African Americans.
Lewis was indicted, tried, and convicted of aggravated sexual assault. After
Lewis was sentenced, trial counsel filed a motion to withdraw. The trial court
granted the motion and appointed a public defender to represent Lewis on appeal.
Through his newly-appointed counsel, Lewis moved for a new trial, alleging that
he received ineffective assistance of counsel during both phases of trial. The trial
court denied the motion. Lewis appeals.
Admission of Forensic Report
In his first issue, Lewis contends that the trial court abused its discretion in
admitting the Bode forensic report through the testimony of S. Gault, a Bode
analyst who did not actually test the swabs obtained from Brown or develop the
DNA profiles. Lewis contends that the admission of the report through Gault’s
surrogate testimony violated his Sixth Amendment right of confrontation. See
4 Paredes v. State, 462 S.W.3d 510, 517–18 (Tex. Crim. App. 2015) (holding that
admission of testimonial lab report through surrogate testimony violates
Confrontation Clause). The State responds that Lewis has not preserved the issue
for appellate review because he did invoke his right to confrontation at trial. We
agree with the State.
A timely and reasonably specific objection is required to preserve error for
appellate review. TEX. R. APP. P. 33.1(a). An objection must comport with the issue
raised on appeal. Fuller v. State, 827 S.W.2d 919, 928 (Tex. Crim. App. 1992);
Smith v. State, 236 S.W.3d 282, 291 (Tex. App.—Houston [1st Dist.] 2007, pet
ref’d). If an objection made in the trial court differs from the complaint raised on
appeal, the defendant has not preserved any error for review. Butler v. State, 872
S.W.2d 227, 236 (Tex. Crim. App. 1994).
Confrontation Clause claims are subject to this general preservation
requirement. Scott v. State, 555 S.W.3d 116, 126 (Tex. App.—Houston [1st Dist.]
2018, pet. ref’d). Thus, a defendant’s failure to object on Confrontation Clause
grounds at trial waives a Confrontation Clause complaint for appellate review. Id.
At trial, Lewis made a general evidentiary objection that the State had failed
to lay a “proper foundation” for the report’s admission because Gault “did not do
the analysis.” See TEX. R. EVID. 901(a) (“To satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce
5 evidence sufficient to support a finding that the item is what the proponent claims
it is.”). But he did not make a Confrontation Clause objection. Thus, Lewis has
waived any Confrontation Clause argument on appeal. See Reyna v. State, 168
S.W.3d 173, 179–80 (Tex. Crim. App. 2005) (holding defendant waived
Confrontation Clause issue when he asserted only basis for admission of cross-
examination testimony “was to attack the victim’s credibility”); Mitchell v. State,
238 S.W.3d 405, 408–09 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (noting
“[e]ven constitutional error may be waived by failure to object at trial” and holding
defendant waived review of issue on appeal because he did not object to testimony
on Sixth Amendment grounds at trial); Campos v. State, 186 S.W.3d 93, 97–98
(Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding that “because appellant
objected only to [witness]’s testimony on hearsay grounds, and not constitutional
grounds, he did not preserve” complaint that testimony violated Confrontation
Clause).
We overrule Lewis’s first issue.1
1 In his appellate brief, at the very end of the section addressing the trial court’s admission of the forensic report, Lewis contends that, to the extent his trial counsel’s objection failed to preserve his Confrontation Clause complaint, trial counsel rendered ineffective assistance. However, Lewis fails to address either prong of this ineffective-assistance claim, and we therefore decline to consider it here. See TEX. R. APP. P. 38.1(i).
6 Ineffective Assistance of Counsel
In his second and third issues, Lewis argues that the trial court abused its
discretion in denying his motion for new trial because he established that he
received ineffective assistance of counsel during both the guilt-innocence and
punishment phases of trial. The State responds that the record is not sufficiently
developed to establish that Lewis received ineffective assistance at either phase of
trial.
A. Applicable law and standard of review
We review a trial court’s denial of a motion for new trial for an abuse of
discretion. Cotton v. State, 480 S.W.3d 754, 756 (Tex. App.—Houston [1st Dist.]
2015, no pet.). When the motion alleges ineffective assistance of counsel, we
review the totality of circumstances of the representation to determine whether the
trial court’s ruling was “so clearly wrong as to lie outside the zone of reasonable
disagreement.” Id. (internal quotations and citation omitted).
To prevail on a claim for ineffective assistance of counsel, a defendant must
satisfy the two-prong test set forth by the United States Supreme Court
in Strickland v. Washington, 466 U.S. 668 (1984). Macias v. State, 539 S.W.3d
410, 415 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).
Under the first prong, “the defendant must show that counsel’s performance
was deficient.” Strickland, 466 U.S. at 687. This requires the defendant to prove
7 “that counsel’s performance fell below an objective standard of reasonableness,
considering the facts of the particular case and judged at the time of counsel’s
conduct.” Ex parte Gonzales, 204 S.W.3d 391, 393 (Tex. Crim. App. 2006).
Under the second prong, “the defendant must show that the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at 687. This requires the
defendant to prove “that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Mitchell v. State, 68 S.W.3d 640, 642
(Tex. Crim. App. 2002); Macias, 539 S.W.3d at 415.
In reviewing a claim for ineffective assistance of counsel, we are “highly
deferential” to trial counsel. Macias, 539 S.W.3d at 415–16. We indulge a “strong
presumption” that trial counsel’s performance “fell within the wide range of
reasonable professional assistance.” Ex parte LaHood, 401 S.W.3d 45, 50 (Tex.
Crim. App. 2013).
To prove that counsel’s performance was deficient, “the defendant must
overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’” Blackwell v. State, 193 S.W.3d 1, 21
(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (quoting Strickland, 466 U.S. at
689). “Any allegation of ineffectiveness must be firmly founded in the record,
8 which must demonstrate affirmatively the alleged ineffectiveness.” Blackwell, 193
S.W.3d at 21. And “trial counsel should ordinarily be afforded an opportunity to
explain his actions before being denounced as ineffective.” Rylander v. State, 101
S.W.3d 107, 111 (Tex. Crim. App. 2003).
Thus, if the record does not contain affirmative evidence of counsel’s
reasoning or strategy, we normally presume that counsel’s performance was not
deficient. Blackwell, 193 S.W.3d at 21. “In rare cases, however, the record can be
sufficient to prove that counsel’s performance was deficient, despite the absence of
affirmative evidence of counsel’s reasoning or strategy.” Id.
B. Analysis
Lewis contends that trial counsel rendered ineffective assistance by failing to
(1) consult a DNA expert, (2) interview potential alibi witnesses, or (3) develop
mitigating evidence. We consider each contention in turn.
1. Failure to consult DNA expert
First, we consider whether Lewis established that trial counsel rendered
ineffective assistance by failing to retain a DNA expert to testify at trial or
otherwise assist in trial preparation.
Appellate counsel did not subpoena trial counsel to appear at the hearing on
Lewis’s motion for new trial, and trial counsel did not appear at the hearing
voluntarily. Thus, to show that trial counsel failed to retain a DNA expert,
9 appellate counsel presented trial counsel’s case voucher, which did not include
costs for experts. And to show that trial counsel’s failure to retain a DNA expert
constituted ineffective assistance, appellate counsel presented a letter from the
Director of the Center for Statistical Genetics at Baylor College of Medicine,
Professor Suzanne Leal.2 Leal’s letter states in full:
I have reviewed the Houston Forensic Science Center’s DNA case file [for Lewis’s case]. There are biases which could affect the calculation of the presented probabilities and also of obtaining DNA matches, which include 1) that the laboratory calculated the random match probability (RMP) for the sperm component of the mixtures involved in the case by deconvoluting the simple mixture and treating the “major contributor” as a single source when calculating the RMP; 2) there is a high likelihood of accidentally finding a match unrelated to the case in the CODIS DNA database; and 3) the random match probability is not reliably applied in this case. Additionally, the interpretation of the presented probabilities is not straightforward and would require detailed information about the databases included in the CODIS search.
It would be highly advisable to have an expert with expertise in forensic DNA analysis and statistical genetics consult on this case.
Appellate counsel argued that HFSC had used the “wrong statistic” to
calculate the random match probability, i.e., the probability that a randomly
selected, unrelated person in a given population group would have the same DNA
profile as the evidentiary sample, assuming the unrelated person was not in fact the
2 Appellate counsel also presented a table showing the size of the CODIS database; a chapter from the National Research Council’s 1996 genetics report; various law journal articles; and Young v. United States, 63 A.3d 1033 (D.C. 2013), an opinion that addresses how to rebut evidence of random match probability.
10 source of the DNA in the sample. Appellate counsel further argued that Lewis was
prejudiced by trial counsel’s failure to consult with an expert because an expert’s
testimony regarding the correct statistical analysis would have affected the
credibility of the DNA report and would have shown that it was “less likely that
this happened as the State said.”
Lewis makes the same arguments on appeal. He contends that, had trial
counsel retained a DNA expert, it would have improved trial counsel’s
understanding of DNA analysis and statistical genetics and thus “would have
helped him raise the questions raised in [Leal]’s letter for effective cross-
examination of the Bode and HFSC analysts.” Lewis emphasizes that Leal’s letter
identifies areas wherein the protocols used by HFSC “were at best controversial.”
To establish that counsel was ineffective for failing to retain an expert
witness, Lewis had to present evidence showing that an expert was available and
could have offered beneficial testimony. See Jones v. State, 500 S.W.3d 106, 116
(Tex. App.—Houston [1st Dist.] 2016, no pet.) (holding that defendant failed to
prove trial counsel rendered ineffective assistance for failing to engage two expert
witnesses when defendant failed to present “evidence showing that such experts
were available or that either could have offered beneficial testimony”); Cantu v.
State, 993 S.W.2d 712, 719 (Tex. App.—San Antonio 1999, pet. ref’d) (“A
defendant who complains about trial counsel’s failure to call witnesses must show
11 the witnesses were available and that he would have benefitted from their
testimony”).
But Lewis has not shown that Leal (or any other expert) would have been
available to testify on Lewis’s behalf. Nor has Lewis shown that testimony from
Leal (or another expert) would have benefitted him.
In her letter, Leal states that the method by which HFSC calculated the RMP
was “biase[d].” But Leal fails to show that a different method would have resulted
in a different RMP. Likewise, in the letter Leal concludes that there is a “high
likelihood” of finding an unrelated match in the CODIS DNA database and that the
RMP was “not reliably applied” in this case. But she does not explain how she
reached her conclusions. She does not quantify the probability of finding an
unrelated match in the CODIS database. Nor does she explain how the RMP was
unreliably applied. Leal’s letter is conclusory.
The HFSC concluded the chance that Lewis’s DNA profile might incorrectly
match the evidentiary profiles obtained from the vaginal swabs and labia minora
swabs of the complainant was exceedingly low—approximately 1 in 22 quintillion
for African Americans. Thus, a recalculation of the RMP would be unlikely to
influence a jury unless it drastically increased the probability that a randomly
chosen unrelated individual would be included as a possible contributor to the
DNA profile. See Young v. United States, 63 A.3d 1033, 1056 (D.C. 2013) (“What
12 difference could it really make to a jury, for example, if the RMP were increased
even a thousand-fold, to one in 2.8 quadrillion? That still would be an extremely
low random match probability.”).
We conclude that the trial court could have reasonably determinized that
Lewis failed to establish that he was prejudiced by trial counsel’s failure to retain a
DNA expert.
2. Failure to interview and present potential alibi witnesses
Next, we consider whether Lewis established that trial counsel rendered
ineffective assistance by failing to interview potential alibi witnesses. Lewis
contends that trial counsel rendered ineffective assistance by failing to interview
potential fact witnesses who might have been able to provide an alibi or otherwise
testify as to the “improbability” that Lewis “committed the offense.”
In support of this claim, Lewis relies on the affidavits of three potential alibi
witnesses: his brother, his ex-girlfriend, and his cousin. In the affidavits, each
witness made general assertions that Lewis could not have committed the offense
because he was always home with his family. But none of them attested to Lewis’s
whereabouts on the date of the offense. Lewis speculates that, had trial counsel
contacted these witnesses before trial, “he might well have been able to elicit from
them specific facts about the actual night in question and the reasons they were
each sure [Lewis] had been with them then.”
13 To establish prejudice because of trial counsel’s failure to call these
witnesses during the guilt-innocence phase of trial, Lewis is required to show that
he would have benefited from their testimony. Perez v. State, 310 S.W.3d 890, 894
(Tex. Crim. App. 2010) (“We stated that the ‘failure to call witnesses at the guilt-
innocence and punishment stages is irrelevant absent a showing that such witnesses
were available and appellant would benefit from their testimony.’”). Lewis has
failed to do so. Lewis would not have benefited in any meaningful way from the
testimony of these witnesses because the testimony does not actually provide an
alibi for Lewis at the time of the offense. See id. at 895 (holding that defendant was
not prejudiced by trial counsel’s failure to call alibi witness when witness was
unable to place defendant in location other than scene of crime at relevant time).
Lewis’s speculation that trial counsel could have elicited further testimony from
these witnesses is insufficient to support a claim of ineffective assistance. See Bone
v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002) (“Ineffective assistance of
counsel claims are not built on retrospective speculation; they must ‘be firmly
founded in the record.’”).
We conclude that the trial court could have reasonably determinized that
Lewis failed to establish that he was prejudiced by trial counsel’s failure to
interview these witnesses.
14 3. Failure to develop mitigating evidence
Finally, we consider whether Lewis established that trial counsel rendered
ineffective assistance by failing to develop mitigation evidence to present during
the punishment phase of trial.
In support of his claim that trial counsel rendered ineffective assistance
during the punishment phase of trial, Lewis relies on the affidavits of his brother,
ex-girlfriend, cousin, and mother, all of whom state they would have testified for
Lewis had they been asked. Lewis contends that trial counsel’s failure to interview
these four witnesses and present their testimony during punishment constituted
ineffective assistance. We disagree.
The record does not show that Lewis would have benefited from the
testimony of these four potential witnesses. See Lumpkin v. State, 129 S.W.3d 659,
665 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (holding that defendant may
base ineffective-assistance claim on failure to present witnesses only if defendant
can show that witnesses were available and that their testimony would have
benefitted defendant).
Lewis’s brother submitted an affidavit stating that, while in school, Lewis
was placed in special education classes. But the PSI Report presented to the trial
court already stated that Lewis had only completed the ninth grade, had been
15 placed in “behavioral classes” while in school, and had experienced “difficulty
with reading.”
Lewis’s ex-girlfriend submitted an affidavit stating that, in 2015, Lewis
smoked a cigarette that was “laced” with “some kind of drug” and suffered a “head
injury” in a car accident, both of which may have resulted in “behavioral changes.”
But the sexual assault for which Lewis was convicted occurred in 2014. Lewis
does not explain how these events that occurred after the offense would have been
relevant in assessing his punishment.
Lewis’s mother submitted an affidavit that provided essentially the same
testimony as Lewis’s ex-girlfriend, except that she said that the car accident
occurred in 2013, not 2015. However, the record shows that, unlike Lewis’s
brother and ex-girlfriend, trial counsel contacted Lewis’s mother on multiple
occasions. Presumably, trial counsel’s decision not to call Lewis’s mother to testify
to Lewis’s character was based on legitimate trial strategy. For example, trial
counsel could have reasonably determined that any nominal benefit from testimony
from Lewis’s mother (or from his brother or ex-girlfriend, for that matter) would
be outweighed by the risk that the State would elicit prejudicial testimony on cross-
examination that Lewis had a history of assaultive behavior and was becoming
increasingly aggressive. See Bone, 77 S.W.3d at 834–35 (observing that trial
counsel could have reasonably determined that potential benefit of introducing
16 mitigating testimony during punishment phase was outweighed by risk of
unfavorable counter-testimony).
The final affidavit submitted by Lewis’s cousin does not contain any
information pertinent to the issue of punishment. Although Lewis refers to trial
counsel’s failure to interview all four potential witnesses, Lewis does not attempt
to demonstrate how his cousin’s testimony would have been beneficial at
sentencing.
Lewis further contends that trial counsel should have presented Lewis’s
medical records from a psychiatric hospital to which he was admitted in 2015.
Again, we disagree that Lewis would have benefited from the introduction of these
records, which show that he was admitted in July 2015 for choking his then-
pregnant girlfriend and pushing her against a wall. See Sanders v. State, No. 01-15-
00954-CR, 2017 WL 2806785, at *4 n.5 (Tex. App.—Houston [1st Dist.] June 29,
2017, pet. ref’d) (mem. op., not designated for publication) (noting that
“emphasizing [defendant]’s mental health might have resulted in a longer
sentence”); Powell v. State, No. 01-11-01035-CR, 2013 WL 4507943, at *9 (Tex.
App.—Houston [1st Dist.] Aug. 22, 2013, no pet.) (mem. op., not designated for
publication) (recognizing that “evidence of a defendant’s mental illness can be
either a mitigating factor or an aggravating factor for the trial court to consider
when assessing punishment”); see also Bell v. State, 938 S.W.2d 35, 48 (Tex.
17 Crim. App. 1996) (evidence of mental retardation “could have a mitigating or
aggravating effect”).
Finally, Lewis complains about various aspects of trial counsel’s closing
argument at the sentencing hearing. But because the record is silent as to trial
counsel’s strategy, Lewis cannot show that trial counsel’s performance was
deficient. Moreover, the record reflects that trial counsel used closing argument to
highlight mitigating evidence contained in the PSI Report. Trial counsel
emphasized that Lewis was only a teenager at the time of the offense; that he may
have been under the influence of narcotics at the time of the offense; that he lacked
positive male guidance; and that he suffered from depression. And although the
State sought a sentence of 99 years due to the egregious nature of the offense, the
trial court imposed a more lenient sentence of 60 years.
We conclude that the trial court could have reasonably determinized that
Lewis failed to establish that he was prejudiced by trial counsel’s failure to develop
mitigating evidence to present during the punishment phase of trial.
We hold that the trial court did not abuse its discretion in denying Lewis’s
motion for new trial. Accordingly, we overrule Lewis’s second and third issues.
18 Conclusion
We affirm the trial court’s judgment.
Laura Carter Higley Justice
Panel consists of Chief Justice Radack and Justices Higley and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).