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Garrett v. State

Court of Appeals of Texas, First District

March 30, 2017


         On Appeal from the 180th District Court Harris County, Texas Trial Court Case No. 1432872

          Panel consists of Justices Keyes, Bland, and Huddle.


          Evelyn V. Keyes Justice

         A jury convicted appellant, Bradley Garrett, of the first-degree felony offense of murder and assessed his punishment at thirty years' confinement.[1] In his sole issue on appeal, appellant contends that the trial court erred by admitting the testimony and report of the DNA analyst in violation of the Confrontation Clause because the analysts who performed the extraction and amplification of the DNA samples did not testify.

         We affirm.


         Appellant occasionally worked as an unarmed security guard at the H2O after-hours nightclub in southwest Houston. In the early morning hours of June 22, 2014, the complainant Clark Scott, Maurian Sanders, and Edward Woodrow arrived at the club. All three men had been drinking and smoking PCP, both before they arrived at H2O and outside of the club. The men stayed at the club for about three hours, until around 7:00 a.m., when Sanders decided that he wanted to leave. Outside the club, Scott and Sanders were laughing and making jokes, and Woodrow began recording them with his cell phone directly in front of the door to H2O. Stephen Freeman, an armed security guard at H2O, asked Woodrow to stop recording.

         Freeman's disagreement with the men over the recording escalated into a physical fight when appellant intervened to assist Freeman and punched Sanders. During the course of this fight, Freeman passed his gun to appellant. Sanders ran from the scene and informed security guards, who were directing traffic at a nearby church, of the situation at H2O.

          Layla Wuttke, who worked at H2O collecting entrance fees and occasionally bartending, witnessed the altercation and informed the club's manager. When she returned outside, Scott was yelling at Freeman and appellant. Wuttke decided to go home and climbed into her car, which was parked near the front door of H2O. Scott continued yelling, and Freeman and appellant slammed Scott down onto the hood of Wuttke's car before Wuttke could close the car door. With Wuttke watching through the front windshield, appellant held Scott down by the back of his neck, pulled out a gun, and shot Scott in the head. Appellant then turned and started shooting at Woodrow, who was shot four times in both legs as he tried to flee, but survived. At some point, appellant left the scene, possibly through the back exit of H2O. Wuttke got out of the car and hid behind a cement block until the police arrived.

         Bill Featherston, one of the security guards working at the nearby church, called 9-1-1 after Sanders ran up to him, and, while he was on the phone, he heard the shooting. Featherston and his supervisor ran to H2O after the shooting ended and found Wuttke, who was uninjured, sitting against a pillar outside the club; Scott, who was "dead for sure, " lying on the ground next to Wuttke's car; and Woodrow, who was lying wounded in the parking lot.

         Wuttke, Sanders, and Woodrow all viewed a photo-array that included appellant's picture, and all three identified appellant as being involved in the incident. Wuttke positively identified appellant at trial as the shooter, and Woodrow identified appellant at trial as possessing a gun during the incident.

         Sanders and Wuttke testified that appellant had been wearing a baseball cap during the altercation. Houston Police Department Officer M. Condon testified that the crime scene unit recovered a baseball cap from the scene. Bao Tran Nguyen, a forensic analyst with the Houston Forensic Science Center, supervised an analyst in training who swabbed the baseball cap recovered from the scene for later DNA analysis. The analysts swabbed the sweat band, both sides of the bill, and the adjuster of the cap for possible contact DNA evidence. Nguyen then took a cutting from the swab and secured that cutting in a freezer for the DNA technician.

         Clay Davis, a forensic DNA analyst with the Houston Forensic Science Center, also testified. He first testified generally concerning the steps of DNA analysis, including extraction of the DNA from the cells of the sample, quantification, amplification, detection, and interpretation. He then testified that the samples in this case underwent those steps. Davis analyzed a portion of the swabs from the baseball cap recovered at the scene. Davis completed a report of his analysis of the swab from the cap compared to appellant's known DNA profile, and the State offered this report into evidence.

         Defense counsel objected to Davis's lab report. Counsel first objected because the report referenced appellant's known buccal swab sample, but there had been no testimony to establish chain of custody concerning that sample. Counsel also objected based on hearsay. The State represented that it would call the homicide investigator who had taken the buccal swab from appellant and submitted it to HPD, where it was tagged as evidence. The trial court conditionally admitted the lab report "subject to the testimony of the officer that took the buccal swab." Defense counsel did not object at this point to the lab report or to Davis's testimony on the basis of the Confrontation Clause of the Sixth Amendment.

         Davis testified that appellant could not be excluded as a contributor to the major component of the DNA profile recovered from the baseball cap. Davis also testified that the probability that a random individual would be included as a possible contributor to the major component of the DNA profile was 1 in 190 quintillion for Caucasians, 1 in 7.3 quintillion for African-Americans, and 1 in 12 sextillion for southwest Hispanics. Davis stated that, unlike appellant, Scott was excluded as a possible contributor to the major component of the DNA profile found on the baseball cap. The minor component of this DNA profile was "insufficient for comparison."

         Before testimony resumed the next morning, defense counsel urged an objection to Davis's testimony and report based on the Confrontation Clause. Specifically, defense counsel stated that she had received the "certificates of analysis" concerning the DNA testing, which indicated that two Houston Forensic Science Center analysts, Kristina Blackmon and Maria Rumble, had performed the DNA extraction and amplification tests on the baseball cap and appellant's buccal swab. Defense counsel argued that whether these tests were properly performed would affect the DNA results and that she had not had an opportunity to cross-examine these analysts, which violated appellant's constitutional confrontation rights.

         The State responded that it intended to call both Blackmon and Rumble to testify. The State also suggested that it could recall Davis, who would testify that Blackmon and Rumble were not involved in the analysis of the DNA profiles, but instead they "engage[d] in batch testing so they take samples, several samples on trays and really take it from one machine to another. It's the machine that does the analysis and develops the data." The trial court deferred ruling on defense counsel's objections because the State had not yet rested its case-in-chief and might call Blackmon and Rumble to testify, which would eliminate any Confrontation Clause issue.

         The State recalled Officer Condon, who testified that he had obtained a buccal swab from appellant after he was arrested. After Officer Condon testified again, the trial court addressed defense counsel's confrontation objection and stated, "I'm satisfied that your objection goes to the weight but not the admissibility of the DNA report." The trial court ...

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