PD-0669-15 June 2, 2015 No. ______________
IN THE COURT OF CRIMINAL APPEALS ________________________________________________________ DAMIEN GUERRERO V. THE STATE OF TEXAS Appellant’s Petitionfor Discretionary Review of the Decision of the Second Court of Appeals in Cause No. 02-13-00611, Affirming the Judgment of the Trial Court in Cause Number 1263552D In Criminal District Court No. 4 of Tarrant County, Hon. Mike Thomas, Presiding. --------------------------------------------------------------------------------------- APPELLANT’S PETITION FOR REVIEW BARRY G. JOHNSON State Bar. No. 10683000 2821 E. Lancaster Ft. Worth, Texas 76103 Barrygj@aol.com 817-531-9665 817-534-9888 FAX Attorney for Appellant
1 Now comes appellant, Damien Guerrero, and files this Petition for
Discretionary Review, and would show this Honorable court the following:
STATEMENT CONCERNING ORAL ARGUMENT
Appellant contends that oral argument would be helpful to the court in unraveling the complex testimony and claimed gaps in the proof that appellant claims are present.
STATEMENT OF PROCEDURAL HISTORY
Date of the Court of Appeals decision: March 26, 2015. Date of the Motion for Rehearing: April 10, 2015. Date the ruling on the Motion for Rehearing disposed: April 30. 2015.
STATEMENT OF THE CASE Appellant was convicted of sexual assault of a child and indecency with a child and was sentenced to seven years incarceration for each offense.
ISSUE PRESENTED Is DNA evidence offered to prove that penetration occurred legally
sufficient if neither the vaginal swab taken from the alleged victim nor the buccal
swab taken from the accused are specifically identified as having been tested and
compared ?
2 STATEMENT OF THE CLAIMED ERROR IN THE OPINION In its Opinion, on page 5, the court states the following: ―The forensic analyst said she recognized her initials on the buccal swabs
and the vaginal swabs. Those were identified as State’s Exhibits 24B and 24C.
The buccal swab was specifically identified as State’s Exhibit 24B. By the process
of elimination, the vaginal swabs were State’s Exhibit 24C.‖
THE CLAIMED ERROR
The court of appeals erred in concluding that the evidence was legally
sufficient to support the jury’s verdict.
Rachel Burch did not specifically identify Exhibit 24 C as the vaginal swab,
and therefore, the testimony of the alleged victim that vaginal penetration occurred
was not corroborated by physical evidence. In addition, Appellant would show
that the DNA analyst did not testify that the samples she testified to were Exhibits
27A and 27B, which were the known samples.
It is important to carefully examine the words used in the testimony of DNA
analyst Rachel Burch concerning the Exhibits.
The Master Exhibit Index, Reporter’s Record, Vol. 6, tells us that Exhibits
24 B and 24 C, are boxes. In other words the swabs themselves were not marked
as evidence, but the boxes that contained the exhibits were marked.
3 Exhibit 24, admitted for purposes of the record only, and not for use by the
jury, is described in the Master Exhibit List as ―sexual assault kit‖, appears to be a
sealed container in which Exhibit 24A through 24F were stored. RR. V. 3, p.3.
Ms. Burch testified that on March 28, 2012, she received an envelope from the Fort
Worth Police Department that was labeled with the complainant’s name. RR. V. 3,
p.121. She stated that within that envelope was a box, and that she was asked to
test the vaginal swabs and the buccal swabs of the complainant. RR, V.3, p.121.
Ms. Burch testimony concerning the identification of the Exhibits was as follows:
Q. (by Ms. Simpson) I’m going to show you what’s been admitted as State’s 24, for purposes of the record, and ask if you recognize anything on the outside of this packaging ? A. Yes, I do. Q. What do you recognize ? A. I recognize our lab number as well as my initials and date. Q. And then State’s 24A came from State’s 24, and there are five items here that have been admitted, 24B, C , D, E and F And ask if you recognize any of the handwriting on those exhibits? A. I recognize my initials and date as well as -–move the sticker—my initials and date on the buccal swabs for the reference as well as on the vaginal swabs. Q. And that would be State’s 24B and 24C? A. Correct. Q. But you do not have any handwriting on D, E, or F? A. Correct. 4 Q. Okay. So you –State’s 24 B is Complainant’s buccal swab? A. Correct. Q. And you were asked to look at vaginal swabs as well? A. Correct Q. State’s Exhibit 27 has two items inside, 27A and 27B. I’ll ask you if you recognize any of the handwriting on 27A, or 27B? A. I recognize initials and date on State’s 27A and 27B. RR, V. 3. pp.121-123 Q. And did you compare what was contained within the vaginal swab to the two buccal swabs that you had? A. Yes, I did. RR, V. 3. pp.121-123. Maria Hinojosa testified that Exhibit 27A and 27B were swabs that were use
to collect buccal samples from appellant.
RR, V.3, p 80.
Although it is not disputed that samples were obtained from appellant, it
should be noted that the Master Exhibit List refers to 27A and 27b as Envelopes.
RR, V.6. p.3. Ms. Hinojosa testified that sterilized Q-tips were used to collect
saliva samples from appellant, which were his b buccal samples. RR,V.3, p.77.
So, apparently, the envelopes marked as Exhibits 27A and 27B contained the Q-
tips which were used to collect the buccal samples.
Ms. Burch testified that she recognized 27A and 27B, because of initials and
date, but does not state whose initials she recognized.
5 Significantly, Ms. Burch did not specifically testify that 27A and 27B, or the
contents contained therein, were the items that she tested for purpose of DNA
analysis.
She did testify that a ―reference was obtained from Damien Guerrero‖ was
added to her table, or chart, for comparison purposes, RR, V.3, p.126) , but never
stated that the data was obtained as the result of testing Exhibit 27 or 27A.
There is also some confusion as to the number of swabs that were obtained
from the complainant. There is no testimony as to how many buccal and vaginal
swabs were obtained from her. There was no testimony as to whether one swab
was equal to one Q-tip.
Referring to the material tested that was obtained from the complainant, she
testified that ―we were asked to test the vaginal swabs‖ (plural) ―and also the
buccal swabs‖ (plural).
RR, V.3, p. 121, Line 9. Later on that page she used the singular and stated that for ―that submission
of evidence I was looking at a buccal swab from ―the complainant‖.
Ms. Burch was asked the following: ―Q. When you looked at the contents of the vaginal swab and compared it with the buccal swab of Damien Guerrero, did you make any conclusions? A. Yes, I did.‖ RR, V.3, p.125-125.
6 She testified that her conclusion was that Damien Guerrero cannot be
excluded as the contributor of the sperm fraction. RR, V.3, p.128.
The above summary and quotation from the testimony lead to two
conclusions. There was no direct evidence that Exhibit 26C contained the vaginal
swab of the complainant and there was no testimony that Exhibits 27A and 27B,
known to be buccal swabs of appellant, were the swabs tested and compared to the
vaginal swab of the complainant.
When the sufficiency of the evidence is challenged, an appellate court must
view all evidence in the light most favorable to the verdict to determine if the jury
was rationally justified in finding guilt beyond a reasonable doubt.
Brooks v.
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PD-0669-15 June 2, 2015 No. ______________
IN THE COURT OF CRIMINAL APPEALS ________________________________________________________ DAMIEN GUERRERO V. THE STATE OF TEXAS Appellant’s Petitionfor Discretionary Review of the Decision of the Second Court of Appeals in Cause No. 02-13-00611, Affirming the Judgment of the Trial Court in Cause Number 1263552D In Criminal District Court No. 4 of Tarrant County, Hon. Mike Thomas, Presiding. --------------------------------------------------------------------------------------- APPELLANT’S PETITION FOR REVIEW BARRY G. JOHNSON State Bar. No. 10683000 2821 E. Lancaster Ft. Worth, Texas 76103 Barrygj@aol.com 817-531-9665 817-534-9888 FAX Attorney for Appellant
1 Now comes appellant, Damien Guerrero, and files this Petition for
Discretionary Review, and would show this Honorable court the following:
STATEMENT CONCERNING ORAL ARGUMENT
Appellant contends that oral argument would be helpful to the court in unraveling the complex testimony and claimed gaps in the proof that appellant claims are present.
STATEMENT OF PROCEDURAL HISTORY
Date of the Court of Appeals decision: March 26, 2015. Date of the Motion for Rehearing: April 10, 2015. Date the ruling on the Motion for Rehearing disposed: April 30. 2015.
STATEMENT OF THE CASE Appellant was convicted of sexual assault of a child and indecency with a child and was sentenced to seven years incarceration for each offense.
ISSUE PRESENTED Is DNA evidence offered to prove that penetration occurred legally
sufficient if neither the vaginal swab taken from the alleged victim nor the buccal
swab taken from the accused are specifically identified as having been tested and
compared ?
2 STATEMENT OF THE CLAIMED ERROR IN THE OPINION In its Opinion, on page 5, the court states the following: ―The forensic analyst said she recognized her initials on the buccal swabs
and the vaginal swabs. Those were identified as State’s Exhibits 24B and 24C.
The buccal swab was specifically identified as State’s Exhibit 24B. By the process
of elimination, the vaginal swabs were State’s Exhibit 24C.‖
THE CLAIMED ERROR
The court of appeals erred in concluding that the evidence was legally
sufficient to support the jury’s verdict.
Rachel Burch did not specifically identify Exhibit 24 C as the vaginal swab,
and therefore, the testimony of the alleged victim that vaginal penetration occurred
was not corroborated by physical evidence. In addition, Appellant would show
that the DNA analyst did not testify that the samples she testified to were Exhibits
27A and 27B, which were the known samples.
It is important to carefully examine the words used in the testimony of DNA
analyst Rachel Burch concerning the Exhibits.
The Master Exhibit Index, Reporter’s Record, Vol. 6, tells us that Exhibits
24 B and 24 C, are boxes. In other words the swabs themselves were not marked
as evidence, but the boxes that contained the exhibits were marked.
3 Exhibit 24, admitted for purposes of the record only, and not for use by the
jury, is described in the Master Exhibit List as ―sexual assault kit‖, appears to be a
sealed container in which Exhibit 24A through 24F were stored. RR. V. 3, p.3.
Ms. Burch testified that on March 28, 2012, she received an envelope from the Fort
Worth Police Department that was labeled with the complainant’s name. RR. V. 3,
p.121. She stated that within that envelope was a box, and that she was asked to
test the vaginal swabs and the buccal swabs of the complainant. RR, V.3, p.121.
Ms. Burch testimony concerning the identification of the Exhibits was as follows:
Q. (by Ms. Simpson) I’m going to show you what’s been admitted as State’s 24, for purposes of the record, and ask if you recognize anything on the outside of this packaging ? A. Yes, I do. Q. What do you recognize ? A. I recognize our lab number as well as my initials and date. Q. And then State’s 24A came from State’s 24, and there are five items here that have been admitted, 24B, C , D, E and F And ask if you recognize any of the handwriting on those exhibits? A. I recognize my initials and date as well as -–move the sticker—my initials and date on the buccal swabs for the reference as well as on the vaginal swabs. Q. And that would be State’s 24B and 24C? A. Correct. Q. But you do not have any handwriting on D, E, or F? A. Correct. 4 Q. Okay. So you –State’s 24 B is Complainant’s buccal swab? A. Correct. Q. And you were asked to look at vaginal swabs as well? A. Correct Q. State’s Exhibit 27 has two items inside, 27A and 27B. I’ll ask you if you recognize any of the handwriting on 27A, or 27B? A. I recognize initials and date on State’s 27A and 27B. RR, V. 3. pp.121-123 Q. And did you compare what was contained within the vaginal swab to the two buccal swabs that you had? A. Yes, I did. RR, V. 3. pp.121-123. Maria Hinojosa testified that Exhibit 27A and 27B were swabs that were use
to collect buccal samples from appellant.
RR, V.3, p 80.
Although it is not disputed that samples were obtained from appellant, it
should be noted that the Master Exhibit List refers to 27A and 27b as Envelopes.
RR, V.6. p.3. Ms. Hinojosa testified that sterilized Q-tips were used to collect
saliva samples from appellant, which were his b buccal samples. RR,V.3, p.77.
So, apparently, the envelopes marked as Exhibits 27A and 27B contained the Q-
tips which were used to collect the buccal samples.
Ms. Burch testified that she recognized 27A and 27B, because of initials and
date, but does not state whose initials she recognized.
5 Significantly, Ms. Burch did not specifically testify that 27A and 27B, or the
contents contained therein, were the items that she tested for purpose of DNA
analysis.
She did testify that a ―reference was obtained from Damien Guerrero‖ was
added to her table, or chart, for comparison purposes, RR, V.3, p.126) , but never
stated that the data was obtained as the result of testing Exhibit 27 or 27A.
There is also some confusion as to the number of swabs that were obtained
from the complainant. There is no testimony as to how many buccal and vaginal
swabs were obtained from her. There was no testimony as to whether one swab
was equal to one Q-tip.
Referring to the material tested that was obtained from the complainant, she
testified that ―we were asked to test the vaginal swabs‖ (plural) ―and also the
buccal swabs‖ (plural).
RR, V.3, p. 121, Line 9. Later on that page she used the singular and stated that for ―that submission
of evidence I was looking at a buccal swab from ―the complainant‖.
Ms. Burch was asked the following: ―Q. When you looked at the contents of the vaginal swab and compared it with the buccal swab of Damien Guerrero, did you make any conclusions? A. Yes, I did.‖ RR, V.3, p.125-125.
6 She testified that her conclusion was that Damien Guerrero cannot be
excluded as the contributor of the sperm fraction. RR, V.3, p.128.
The above summary and quotation from the testimony lead to two
conclusions. There was no direct evidence that Exhibit 26C contained the vaginal
swab of the complainant and there was no testimony that Exhibits 27A and 27B,
known to be buccal swabs of appellant, were the swabs tested and compared to the
vaginal swab of the complainant.
When the sufficiency of the evidence is challenged, an appellate court must
view all evidence in the light most favorable to the verdict to determine if the jury
was rationally justified in finding guilt beyond a reasonable doubt.
Brooks v. State , 323 S.W.3d 893(Tex. Crim. App. 2010). The court must ensure
that the evidence presented actually supports a conclusion that the defendant
committed the crime. Williams v. State, 235 S.W.3d 742, 750. (Tex. Crim. App.
2007).
In this petition we have attempted to demonstrate the problems with the
DNA evidence in the trial. In its opinion, the court conceded that it took the
process of elimination to connect up the vaginal swab to Exhibit 24C.
With respect to the appellant’s DNA, to determine that the analyst’s
conclusion that there was a match requires the court to fill in the blanks with
7 testimony that was not presented to conclude that she did test 27A and 27B,
because she did not testify to it.
In the State’s closing argument, the importance of the DNA evidence was
emphasized by the prosecutor’s statement that first, appellant ―left his sperm inside
of her sexual organ.‖ Then, the prosecutor said that there ―are 5.7 quintillion
reasons to find this man guilty‖, quoting the statistic testified to by the DNA
analyst as to the likelihood of appellant being the person whose DNA was found.
CONCLUSION AND PRAYER Because the gap in the state’s proof is so wide and so significant, appellant
prays that this Petition for Review be granted, and upon hearing, that this court
reverse and render judgment of acquittal on all charges, or in the alternative , to
remand this matter for a new trial on all charges, or, in the alternative, to render a
judgment of acquittal as to the offense of aggravated sexual assault of a child, and
to remand the case for a new trial on the charge of Indecency with a Child, or for a
new punishment hearing on the offense of Indecency with a Child..
Respectfully submitted, /s/ Barry G. Johnson Barry G. Johnson SB#10683000 2821 E. Lancaster
8 Fort Worth, Texas 76103 barrygj@aol.com 817-531-9665 fax 817-534-9888 Attorney for Appellant
CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing document upon Sharen Wilson, Attorney for Appellee, by email, on this the 1st day of June 2015.
/s/ Barry G. Johnson Barry G. Johnson