JASON JACKSON v. THE STATE OF TEXAS (2025)

OPINION

Affirmed and Opinion filed July 15, 2025.

Appellant Jason B. Jackson appeals his conviction for aggravated sexual assault. He contends the trial court violated his Confrontation Clause rights in two respects. His first issue concerns the admissibility of forensic DNA evidence. He claims the court erred by admitting a testifying DNA expert's reports stating the results of the expert's analysis comparing an unknown DNA profile (generated by non-testifying analysts) to a known DNA profile submitted by appellant. We overrule this issue because the reports stated the testifying expert's opinions based on her own comparative analysis and did not purport to convey any out-of-court testimonial hearsay.

Second, appellant argues the trial court erroneously admitted during the punishment phase evidence regarding an extraneous sexual assault by appellant. We overrule this issue because the trial court did not err in admitting this evidence.

We affirm the trial court's judgment.

Background

Because appellant does not challenge the sufficiency of the evidence, we summarize the factual background only briefly.

The complainant, T.T., was walking home from work late one night in December 2009 when two men abducted her in a van and sexually assaulted her. After the assault, the men threw her (naked) and her clothes out of the van, about a block away from her home. She dressed and ran home, where her boyfriend called 911. At a hospital, medical personnel performed a sexual assault exam. They collected evidence from the exam, packaged the items in a sexual assault kit, and sent the kit to the Houston Forensic Science Center (“HFCS”). HFCS sent items from the kit to an accredited third-party lab, Bode Technology. Bode analysts processed certain items, generated DNA profiles of the complainant and an unknown person, and returned the items along with documentation and a report containing its findings. No suspects were identified at that time.

In 2013, appellant voluntarily provided a buccal swab. Several years later, a DNA match from his buccal swab to the evidence processed from the complainant's sexual assault kit triggered further investigation into the instant offense.¹ At appellant's trial, the State's DNA expert, Jessica Powers of HFSC, testified without objection that appellant's DNA matched the DNA of the unknown person collected during the complainant's sexual assault exam. The State also offered four reports prepared by Powers stating the results of her comparative analysis and findings—State's Exhibits 12-15. Appellant objected to those reports on Sixth Amendment and hearsay grounds. The court overruled the objection. The jury found appellant guilty of aggravated sexual assault.

Appellant initially elected for the jury to determine his punishment, but he changed his election to the trial court. Appellant stipulated to his prior criminal history, which included a sexual assault conviction.² The State offered exhibits pertaining to this conviction, including the judgment and other records. Appellant did not oppose admission of the judgment but objected to the other records on Confrontation Clause grounds. The trial court overruled the objection, sentenced appellant to sixty years' confinement, and signed a judgment accordingly.

Appellant timely appealed.

Analysis

A. Applicable Principles

Both of appellant's issues are based on the Sixth Amendment's Confrontation Clause, which guarantees an accused the right to confront witnesses against him. See U.S. Const. amend. VI; Smith v. Arizona, 602 U.S. 779, 783 (2024); Molina v. State, 632 S.W.3d 539, 543 (Tex. Crim. App. 2021); Paredes v. State, 462 S.W.3d 510, 514 (Tex. Crim. App. 2015). The clause bars testimonial statements of absent witnesses unless the witness is “unavailable to testify and the defendant had a prior opportunity” for cross-examination. Crawford v. Washington, 651 U.S. 36, 53-54 (2004). This prohibition applies to “testimonial hearsay,” which means that it is confined to (1) testimonial statements (2) offered to prove the truth of the matter asserted. See Smith, 602 U.S. at 784-85. Testimonial statements are those “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Molina, 632 S.W.3d at 543. Whether an out-of-court statement is testimonial is a question of law. Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010).

B. Forensic Testing and the Confrontation Clause

In his first issue, appellant argues that the trial court erred by admitting Powers's reports and opinions.

The Confrontation Clause's prohibition against testimonial hearsay encompasses forensic analyses. Smith, 602 U.S. at 783. Thus, “a prosecutor cannot introduce an absent laboratory analyst's testimonial out-of-court statements to prove the results of forensic testing.” Id.

Appellant argues that the court allowed Powers to testify about what Bode analysts did and found. According to him, Powers was simply a “mouthpiece for the factual findings of Bode.”

To the extent this argument pertains to Powers's oral testimony—as distinguished from her reports—it is unpreserved. A defendant must preserve error in the trial court to argue on appeal that his right to confront witnesses was violated. Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009); Tex. R. App. P. 33.1(a)(1). To preserve error, a defendant must make a timely, specific objection. Blanken v. State, 443 S.W.3d 383, 388 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd).

Appellant asserted no Confrontation Clause objection during Powers's live testimony, when she discussed Bode's processes, standard protocols, the way the DNA profiles are generated, and HFSC's procedures to ensure that the data received from Bode is accurate. Thus his Confrontation Clause appellate complaints directed at Powers's live testimony are unpreserved. See Tex. R. App. P. 33.1; Blanken, 443 S.W.3d at 388.

On the other hand, appellant timely asserted a Confrontation Clause objection to Powers's four reports when the State sought to introduce them into evidence. Therefore, we consider appellant's arguments only as applicable to Powers's reports.³

Appellant contends that Smith controls this case. There the Supreme Court examined whether a Confrontation Clause violation occurs when a testifying expert conveys to the jury an absent analyst's substantive statements in support of the expert's opinion. Id. The court held that “when an expert conveys an absent analyst's statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth,” and are therefore hearsay. See id. A prosecuting authority may not circumvent the Confrontation Clause by having a surrogate witness present the substance of out-of-court statements as the basis of the testifying expert's opinion. Id. at 803. If the absent analyst's out-of-court statements are also testimonial—an issue the Smith court did not reach—then the Confrontation Clause bars their admission. Id. at 783.

Smith does not control our disposition of appellant's first issue for more than one reason. Powers's reports do not purport to convey the substance of any out-of-court statement by Bode or its analysts. And appellant does not direct us to any assertions in those reports that he contends constitute testimonial hearsay. To be sure, Powers relied on DNA profiles Bode developed. But because Powers's reports document her own opinions and conclusions based on work she performed, and because they do not contain out-of-court statements by Bode, the Confrontation Clause does not bar their admission. See Paredes, 462 S.W.3d at 517-18. The State did not use Powers's reports as a surrogate to introduce any findings or assertions by Bode. As in Paredes, none of Bode's reports or underlying data came into evidence. Id. at 518.

Moreover, our Court of Criminal Appeals has settled that raw data constituting a DNA profile—such as the data Bode developed here—is not testimonial under the present circumstances. Molina, 632 S.W.3d at 546; Parades, 462 S.W.3d at 519. In Parades, Paredes and other gang members broke into an apartment to steal money and drugs. Parades, 462 S.W.3d at 511-12. During the robbery, two people were shot and killed. Id. at 512. After Paredes and the other gang members left, Paredes gave another gang member his shirt, which had blood on it, and asked her to wash it. Id. Rather than washing it, the other gang member notified police, who seized the shirt and sent it to a lab. Id. The lab used an assembly-line batch process to “generate [the] raw DNA data.” Id. The State called the director of the lab to testify but not the three analysts who generated the raw DNA data. Id. at 511-13. Paredes objected and argued that he was entitled to confront the three non-testifying analysts and that the director's proposed testimony that the blood on Paredes's shirt likely came from one of the victims would violate the Confrontation Clause because the director was only a surrogate for the three non-testifying analysts. Id. at 513. The trial court overruled his objection and allowed the director to testify. Id. Paredes was convicted of capital murder. Id.

The Parades court held that no Confrontation Clause violation occurred, reasoning that the DNA profile developed by the non-testifying analysts was not testimonial because the computer-generated data stood for nothing without further analysis. Id. at 519. The testifying expert “performed the critical analysis determining the DNA match and testified to her own conclusions.” Id. at 518; see also Parades v. State, 439 S.W.3d 522, 527-28 (Tex. App.—Houston [14th Dist.] 2014) (explaining that raw DNA data generated by non-testifying analysists was not testimonial because its “primary purpose” was not to create an out-of-court substitute for trial testimony; instead, it was the expert's “opinions—not the raw DNA data generated by the non-testifying analysts—that asserted facts relevant to appellant's prosecution”), aff'd, Parades, 462 S.W.3d at 510. The Parades court further noted that the underlying lab reports on which the testifying expert relied were not offered into evidence. Parades, 462 S.W.3d at 518.

More recently, in Molina, the Court of Criminal Appeals held that admission of an analyst's expert testimony about DNA-comparison analysis that was based on computer-generated data from other labs did not violate the Confrontation Clause. Molina, 632 S.W.3d at 540. Molina's facts bear likeness to this case because a sexual assault occurred years before a suspect was identified through a match of DNA profiles entered into CODIS. See id. In Molina, the victim was sexually assaulted in 2000, and DNA evidence was collected during a sexual assault exam. Id. The victim's sexual assault kit was sent for testing in 2003 to an outsourced lab. The lab generated a DNA profile relating to an unknown donor, and the information was entered into the CODIS database. Id. at 540. Though no suspect was identified at the time, thirteen years later the defendant provided a buccal swab for testing, which was sent to HFSC and processed. Id. at 540-41. An analyst compared the DNA profile generated from the buccal swab and determined that the unknown profile from the sexual assault years earlier matched the defendant's. Id. at 541. The analyst testified at the appellant's trial over the defendant's Confrontation Clause objection. Id. at 542. Molina was convicted of aggravated sexual assault. Id. at 543.

On appeal, the Molina court held that the underlying DNA profile was not testimonial:

It reflects that presumptive tests were performed on some of the items of evidence, that an epithelial-cell fraction was recovered from the vaginal swab(s), that epithelial-cell and sperm-cell fractions were extracted from the two undergarment cuttings, that quality control protocols had been employed, and it includes data about the partial DNA profile. None of those things are “inherently inculpatory or [were] created for use against [Appellant].” They stand for nothing on their own without additional analysis, and even if they had some intrinsic inculpatory value, there was no suspect until years later when Appellant voluntarily provided a buccal swab.

Id. at 546. The Molina court explained that the testifying witness “was not merely a surrogate witness for the non-testifying analysts.” Id. Instead, the underlying DNA report was a basis for the expert's “independent analysis of the two DNA profiles and his conclusions that the unknown epithelial-cell and the sperm-cell fractions likely came from Appellant.” Id. Finally, the court noted that the computer-generated DNA data was not included in the expert's report, and the underlying DNA report was not admitted into evidence. Id.

Paredes and Molina stand for the proposition that raw DNA data generated by non-testifying analysts is not testimonial because it does not serve as an out-of-court substitute for trial testimony.

What was true in Molina is true in today's case. Powers explained that the evidence collected from the complainant's sexual assault exam was outsourced to Bode for processing. Powers acknowledged she was not the analyst who developed any of the DNA profiles in today's case. After the evidence was processed and analyzed, the lab generated an “unknown” DNA profile. Later, a DNA profile was created for appellant based on his buccal swab. Powers took the DNA profile obtained from appellant's buccal swab and compared it to the unknown DNA profile that was obtained from the complainant's sexual assault kit. She documented her results and findings in her reports, which were admitted into evidence. Powers further explained that she compared the DNA profiles and opined that appellant's DNA profile matched that of the unknown profile generated through the testing of the complainant's sexual assault kit.

Without Powers's independent analysis, the DNA profiles generated by Bode stand for nothing on their own. They do not inculpate appellant regarding any offense; it is only through the comparison of the underlying data that appellant stands accused. See Molina, 632 S.W.3d at 546; Parades, 462 S.W.3d at 519. The underlying DNA profiles were neither created as out-of-court substitutes for trial testimony nor for the “primary purpose” of accusing appellant. Accord Parades, 439 S.W.3d at 527-28. Instead, it was Powers's opinion linking these two profiles that support appellant's prosecution. And Powers was subject to cross-examination, so her testimony did not violate appellant's right to confrontation.

Appellant cites People v. John, 27 N.Y.3d 294, 307, 52 N.E.3d 1114 (2016), for the proposition that “other jurisdictions have applied the primary purpose test to determine that DNA data and reports were testimonial.” Although the Court of Appeals of New York did hold that the DNA reports in that case were testimonial, the court also observed, “The DNA profiles were generated in aid of a police investigation of a particular defendant charged by an accusatory instrument and created for the purpose of substantively proving the guilt of the defendant in his pending criminal action.” Id. at 308. The issue in John was whether the defendant's right to confrontation was violated when the prosecution introduced DNA reports into evidence that showed his “DNA profile was found on the gun that was the subject of the charged possessory weapon offense.” Id. at 297. Thus, the report itself was inculpatory. Here, in contrast, the DNA profile generated from the complainant's sexual assault kit did not initially match with any known suspect. It was not until years later that appellant's DNA profile was determined to be a match. Thus, neither appellant's DNA profile nor the unknown profile generated from the sexual assault kit, standing alone, were inculpatory, as was the profile report in John. Instead, as in Molina, appellant was not a suspect when the unknown profile was developed, and it was the testifying expert's report and opinion that tied appellant to this offense. Molina, 632 S.W.3d at 546.

We overrule appellant's first issue.

C. Extraneous Offense Evidence During Punishment Phase

In his second issue, appellant asserts that the trial court violated the Confrontation Clause by erroneously admitting during the punishment phase the testimonial hearsay of a complaining witness to an extraneous sexual assault offense. Specifically, appellant challenges the extraneous sexual assault complainant's statement recorded in a sexual assault nurse examiner's report (the “SANE report”), which was admitted into evidence.⁴

Appellant, his trial counsel, and the State signed a stipulation of evidence, in which appellant stipulated that he was convicted of sexual assault on July 2, 2017, and sentenced to seventeen years' confinement. During the punishment phase, the State offered and the court admitted without objection a copy of the 2017 judgment of conviction. The State also offered as a separate exhibit a copy of the SANE report relating to the 2017 judgment. Appellant objected to the SANE report on Confrontation Clause grounds. The trial court asked whether the exhibit was a “business record,” and the State responded that it was a “medical record” that had been on file for more than fourteen days.⁵ The trial court overruled appellant's objection.

Medical reports created for treatment purposes are generally non-testimonial. Odeku v. State, —S.W.3d—, 2025 WL 1129131, at *5 (Tex. App.—Houston [1st Dist.] Apr. 17, 2025, pet. ref'd) (citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 n.2, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); Berkley v. State, 298 S.W.3d 712, 715 (Tex. App.—San Antonio 2009, pet. ref'd)). Numerous courts of appeals, including this court, have concluded that a patient's verbal history to a SANE or other medical professional during a sexual assault exam for purposes of receiving medical treatment is not testimonial, and its admission therefore does not violate the Confrontation Clause. See Odeku, —S.W.3d—, 2025 WL 1129131, at *5 (citing Melendez-Diaz, 557 U.S. at 312 n.2; Berkley, 298 S.W.3d at 714-15); Trollinger v. State, No. 11-22-00089-CR, 2023 WL 5622111, at *3 (Tex. App.—Eastland Aug. 31, 2023, no pet.) (mem. op., not designated for publication); Franklin v. State, No. 02-21-00088-CR, 2022 WL 3651972, at *3 (Tex. App.—Fort Worth Aug. 25, 2022, pet. ref'd) (mem. op., not designated for publication); Bohanna v. State, No. 14-19-00936-CR, 2021 WL 1917663, at *5-6 (Tex. App.—Houston [14th Dist.] May 13, 2021, pet. ref'd) (mem. op., not designated for publication); Murray v. State, 597 S.W.3d 964, 973-75 (Tex. App.—Austin 2020, pet. ref'd); DeLeon v. State, No. 13-18-00480-CR, 2019 WL 4200297, at *5 (Tex. App.—Corpus Christi-Edinburg Sept. 5, 2019, pet. ref'd) (mem. op., not designated for publication); Garrett v. State, No. 12-15-00208-CR, 2017 WL 1075710, at *3 (Tex. App.—Tyler Mar. 22, 2017, no pet.) (mem. op., not designated for publication); Berkley v. State, 298 S.W.3d 712, 715 (Tex. App.—San Antonio 2009, pet. ref'd). This is so because “[a] person undergoing a SANE exam provides a verbal history to a medical professional for the primary purpose of obtaining medical treatment, whether or not the person intends to report the sexual assault to the police and even though the exam creates evidence that might be used in a prosecution.” Odeku, 2025 WL 1129131, at *5.

Under these circumstances, we conclude that the trial court did not err in overruling appellant's Confrontation Clause objection to the SANE report.⁶ We overrule appellant's second issue.

Conclusion

Having overruled appellant's issues, we affirm the trial court's judgment.

FOOTNOTES

1.   Outside the jury's presence, the State explained that this was a “CODIS hit case.” The CODIS database is a DNA database of convicted felons whose DNA is obtained when they are taken into custody.

2.   Appellant's criminal history also included several other judgments of conviction for, among other things, possession of a controlled substance and theft, all of which were admitted without objection.

3.   The day before Powers testified, appellant's counsel informed the court outside the jury's presence that he intended to object on Confrontation Clause grounds to the exhibits he anticipated the State would introduce through Powers as a sponsoring witness. Appellant in fact timely objected to the reports when the State offered them the next day. He did not, however, tell the court that he would object to Powers testifying, nor did he assert a Confrontation Clause objection during her testimony.

4.   At trial, appellant objected on Confrontation Clause grounds to the admission of the SANE report and an EMS report relating to the extraneous offense. On appeal, however, he challenges only the complainant's statement contained in the SANE report. We thus cabin our discussion to the SANE report.

5.   Faced with a timely Confrontation Clause objection, the proponent of the evidence bears the burden to demonstrate admissibility. See De La Paz v. State, 273 S.W.3d 671, 680-81 (Tex. Crim. App. 2008). Here, the State's assertion that the SANE report was a medical record went unchallenged by appellant.

6.   We also note that appellant did not specifically object to the complainant's statement contained in the SANE report, which is the basis for his Confrontation Clause arguments on appeal. Cf., e.g., Whitaker v. State, 286 S.W.3d 355, 369 (Tex. Crim. App. 2009) (when an exhibit contains both admissible and inadmissible evidence, the burden is on the objecting party to specifically point out which portion is inadmissible).

Kevin Jewell Justice