SEAVEY v. STATE (2026)

OPINION ON REMAND

On original submission, this Court affirmed the denial of appellant Jared Holton Seavey's Confrontation Clause challenge to the testimony of a substitute medical examiner. See Seavey v. State, No. 14-22-00513-CR, 2023 WL 8588054, at *3 (Tex. App.—Houston [14th Dist.] Dec. 12, 2023, pet. ref'd) (mem. op., not designated for publication), vacated, ––– U.S.––––, 145 S. Ct. 368, 220 L.Ed.2d 137 (2024). The Supreme Court subsequently vacated our judgment and remanded for further consideration in light of its opinion in Smith v. Arizona, 602 U.S. 779 (2024). We do so and affirm.

I. Background

Appellant was convicted of the murder of Vanessa Mayfield (“Mayfield”) for stomping her to death. Originally, Susan Roe, M.D. (“Dr. Roe”), a deputy medical examiner at the Tarrant County Medical Examiner's Office, performed Mayfield's autopsy. However, the State called a different deputy medical examiner, Richard Fries, M.D. (“Dr. Fries”), to testify at trial about Mayfield's injuries and cause and manner of death after Dr. Roe moved out of state. Appellant objected both pre-trial and at trial to the use of Dr. Fries as a witness based on Confrontation Clause grounds, which the trial court overruled each time.

In a pre-trial hearing on the issue, Dr. Fries explained that it was common practice for a deputy medical examiner to review autopsies performed by colleagues. He testified that it was possible to offer an individual opinion about injuries and cause of death even in cases where a different medical examiner conducted the autopsy. When asked, “What facts or data are considered when forming that [independent] opinion?”, Dr. Fries explained that generally “we'll use the autopsy report that's produced by the physician who performed it as well as photographs that are taken during the procedure, other reports generated, toxicology reports, radiographs that may be taken during the examination, and any other records that may be pertinent.”

For Mayfield's autopsy in particular, Dr. Fries testified in the pre-trial hearing that “[m]y review included the autopsy report, the photographs of the autopsy, [ ] the radiographs ․ and the toxicology.” He testified that Mayfield's injuries were “well documented,” and that her cause of death was traumatic injuries to her head and neck from a homicide. He conceded in the pre-trial hearing that Dr. Roe had not videotaped or audiotaped the autopsy. He was unaware of whether Dr. Roe had made handwritten or dictated notes. Though he was familiar with her general approach to autopsies and did not see deviations from that approach notated in her autopsy report, Dr. Fries also conceded he did not personally know whether there were any deviations in this particular autopsy.

Just before his testimony at trial, Dr. Fries was again questioned outside the jury's presence. He repeated his opinion as to cause and manner of death and again stated that his opinion would be based on his “review of the case, including the autopsy report, the photographs of the autopsy, and the radiographs, and the toxicology.” Dr. Fries again explained that it was not necessary for him to conduct the autopsy or to see a videotape of it in order to reach his own conclusions independently. However, he conceded that because he was not present at the autopsy, he did not know the technique or method Dr. Roe used to conduct it other than what she described in the autopsy report and would not know if there was a mistake made. Still, he responded, “Correct,” when asked, “And you did not rely on her work specifically; you reached your own conclusions?” Finally, the State further explicitly told the trial court during this hearing that it did not intend to offer any testimonial statements made by Dr. Roe in the autopsy report, including her opinion about the cause of death. Rather, any opinions elicited from Dr. Fries would be “his independent opinion after a review of Dr. Roe's case file.”

In his testimony before the jury, Dr. Fries explained that in an autopsy, when a decedent arrives at the county medical examiner's office, the medical examiner will document external conditions and characteristics, such as height, weight, and hair color. An external examination will then be conducted to document any injuries to the body. Next, the medical examiner proceeds with an internal examination, looking for evidence of injury and signs of natural disease and taking specimens of tissue, blood, and other fluids. Based on the information collected in these external and internal examinations, the medical examiner will come to a determination on the cause and manner of death.

Dr. Fries testified that it was a common practice for a deputy medical examiner to review autopsies conducted by colleagues and to arrive at an independent opinion about injuries and cause of death. He testified that he had reviewed the autopsy in this case, though he was not present when that examination occurred. He testified that he “reviewed the autopsy report, the photographs from the autopsy itself, the radiology, and the toxicology report,” and he agreed that from his review he was able to discern injuries to Mayfield's body.

Dr. Fries explained that, as documented in photographs, there were abrasions, contusions, and skin lacerations predominantly around Mayfield's face, head, and neck. Dr. Fries specifically identified State's Exhibits 100 through 103, photographs from the autopsy showing visible injuries to Mayfield's head, neck, and face, as assisting him in his findings. Mayfield had also suffered internal injuries, which Dr. Fries identified as hemorrhaging in her eyes, bleeding around the brain, swelling of the brain, fractures of the maxilla and of the nose, and hemorrhaging in the soft tissues of the neck such as her hyoid bone and back of her pharynx. He explained further that bleeding around the brain can generally be visualized and photographed, and in photographs of Mayfield's autopsy he observed hemorrhaging around the brain. Further, swelling in the brain can “shove the brain into parts of the skull down into the spinal column that can ․ obstruct the blood vessels and the blood supply to the brain resulting in death.” The trauma and injuries to Mayfield were extensive enough to cause death, in Dr. Fries's opinion, and could be explained by someone stomping her. Finally, Dr. Fries opined that the cause of Mayfield's death was “traumatic injuries to the head and neck,” and the manner of her death was homicide.

II. Confrontation Clause

A. Standard of Review & Governing Law

We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016); Thomas v. State, 651 S.W.3d 102, 110 (Tex. App.—Houston [14th Dist.] 2021, pet. ref'd). A trial court abuses its discretion when its decision falls outside the zone of reasonable disagreement. Henley, 493 S.W.3d at 83. Before we may reverse the trial court's decision admitting evidence, we must find that the trial court's ruling was “so clearly wrong as to lie outside the zone within which reasonable people might disagree.” Id. (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008)).

The Confrontation Clause of the Sixth Amendment guarantees the accused the right to confront the witnesses against him: “[i]n all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause “protects a defendant's right of cross-examination by limiting the prosecution's ability to introduce statements made by people not in the courtroom.” Smith, 602 U.S. at 784. It applies to in-court testimony and testimonial statements made outside of court. Molina v. State, 632 S.W.3d 539, 543 (Tex. Crim. App. 2021) (citing Paredes v. State, 462 S.W.3d 510, 517–18 (Tex. Crim. App. 2015)). The Confrontation Clause's prohibition barring the testimonial statements of an absent witness whom the defendant has not had a prior opportunity to cross-examine “applies in full to forensic science.” Smith, 602 U.S. at 783; see, e.g., Bullcoming v. New Mexico, 564 U.S. 647, 651 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329 (2009); Crawford v. Washington, 541 U.S. 36, 54 (2004); Paredes, 462 S.W.3d at 514–15.

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.” Paredes, 462 S.W.3d at 514 (citing Crawford, 541 U.S. at 52). 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. Smith v. Arizona

In Smith v. Arizona, the Supreme Court addressed the testimony of a substitute expert witness who restated an absent lab analyst's findings to support his own opinion testimony. Smith, 602 U.S. at 783. The case involved a large quantity of what appeared to be drugs, which police sent to a state-run crime lab for analysis. Id. at 789. There, a lab analyst ran the requested tests, documented her lab work and results, and prepared a signed, final report. Id. at 790. In the final report, the lab analyst concluded that among the substances she analyzed, eight contained useable amounts of illegal drugs. Id. However, for trial, the prosecution replaced the lab analyst with a substitute expert witness who had no prior connection to the case. Id. And during his testimony at trial, this substitute expert referred to the absent lab analyst's report and notes and “related what was in them, item by item by item.” Id. at 791. The defendant in Smith thus argued that the real witness against him was the original lab analyst, not the substitute expert who repeated the lab analyst's findings as his own independent opinions. See id.

The Smith Court first discussed instances in which a substitute witness's testimony may run afoul of the Confrontation Clause, such as a substitute expert acting as a mere “surrogate,” “conduit,” or “mouthpiece” for the absent expert's findings, id. at 786–87, 800; admission of testimonial forensic reports without testimony from the lab analyst who conducted the tests and signed the reports, id. at 785 (citing Melendez-Diaz, 557 U.S. at 312); or certain admission of an absent expert's findings as “basis evidence” for the testifying expert's opinion. See id. at 788 (addressing concurrence and four-justice dissent in Williams v. Illinois, 567 U.S. 50 (2012) (Thomas, J., concurring, and Kagan, J., dissenting)); accord Paredes, 462 S.W.3d at 517–18 (Tex. Crim. App. 2015) (holding that “[w]hile a testifying expert can rely on information from a non-testifying analyst, the testifying expert cannot act as a surrogate to introduce that information”).

Having noted the confusion sown by the Williams opinions about the Confrontation Clause's application to expert opinion testimony, the Court then explained that the Confrontation Clause's prohibition against such absent witnesses “applies only to testimonial hearsay—and in that two-word phrase are two limits.” Smith, 602 U.S. at 784. First, the absent expert's statements must be admitted as hearsay, i.e., offered for the truth of the matter asserted. “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.” Id. at 783. Second, the absent expert's statements must be testimonial, i.e., made with the primary purpose for use at a later trial. See id. at 785. The practical application of the Smith majority for “basis evidence” is: if a testifying expert conveys an absent expert's out-of-court statement in support of his own opinion, and the testifying expert's opinion works only if that statement is true, the statement has been offered for its truth and cannot be “smuggled” in as basis testimony.

C. Analysis

We thus begin our analysis as set forth by the Supreme Court: “a court analyzing a confrontation claim must identify the role that a given out-of-court statement ․ served at trial.” Id. at 793. Given that Texas law already bars admission of an absent analyst's forensic report and bars use of a surrogate expert to transmit an absent expert's testimonial information, see Paredes, 462 S.W.3d at 517–18, Smith simply requires us to ask whether testimonial hearsay actually made it to the jury and, if so, through whom. See Lawyer v. State, No. AP-77,124, 2026 WL 1853845, at *8 (Tex. Crim. App. June 25, 2026).

In this case, the absent expert's autopsy report was not admitted in evidence at trial. Its content was not published to the jury in any exhibit. Nor was it admitted for any purpose in the pre-trial hearing or the hearing outside the jury's presence. Unlike in Smith, the substitute expert, Dr. Fries, did not quote a single line from the autopsy report in his testimony. Nor did the State ask him to testify about the absent expert's conclusions (such as cause of death), her description of the injuries she observed, or whether he agreed with any portion of the autopsy report. In fact, Dr. Fries did not testify at trial about any information whatsoever from the autopsy report.

Dr. Fries did testify at trial that he reviewed the autopsy report—which a substitute medical examiner may do. See id. at *6; Paredes, 462 S.W.3d at 517–18. He also testified that he reviewed photographs of the autopsy, radiographs, and the toxicology. When asked, however, to explain the injuries to Mayfield he had discerned, Dr. Fries specifically and exclusively referred to “injuries documented in photographs.” He directed the jury's attention to particular images and described what the pictures showed, repeatedly couching his testimony in terms such as “we can see,” “I can see,” and “it appears.” That phrasing indicates he was drawing his conclusions from what he himself saw in the photographs admitted at trial, rather than relaying statements from Dr. Roe's autopsy report.¹

Using autopsy photographs admitted as State's Exhibits 100 through 103,² Dr. Fries directed the jury's attention to abrasions, tears, and lacerations on Mayfield's forehead, face, lower lip, brows, and scalp. Dr. Fries also testified about bleeding and hemorrhaging in Mayfield's brain that had been documented in photographs.³ Photographs taken during an autopsy are not statements and are thus nontestimonial in nature for confrontation purposes. See Williams v. State, 513 S.W.3d 619, 637 (Tex. App.—Fort Worth 2016, pet. ref'd). Autopsy photographs and radiographs depict physical evidence. They reveal what is physically present whether or not anyone describes them. Dr. Fries stated that the injuries he had observed were “[e]xtensive enough to cause death.” As his testimony shows, he spoke in terms of what the photographs revealed and what he observed in them, underscoring that his opinion was grounded in those images rather than in an absent examiner's narrative. After Dr. Fries's extensive use of photographs to describe Mayfield's injuries, the State ultimately asked Dr. Fries, “After reviewing the autopsy and facts and underlying data accompanying it of Dr. Roe's autopsy, do you have an independent opinion as to the cause of death of Vanessa Mayfield?” Dr. Fries responded, “Yes. The cause of death in this case is traumatic injuries to the head and neck.”⁴

Here, Dr. Fries reviewed the absent expert's autopsy report, but he did not testify as to any statements made in the report and the report itself was never admitted in evidence, much less offered for the truth of the matter asserted. See Smith, 602 U.S. at 783; Lawyer, 2026 WL 1853845 at *8; cf. Henriquez v. State, 580 S.W.3d 421, 429 (Tex. App.—Houston [1st Dist.] 2019, pet. ref'd) (finding a Confrontation Clause violation by admission of absent medical examiner's autopsy report, to which substitute medical examiner referred during her testimony at trial). The only “basis evidence” the jury heard consisted of the autopsy photographs—nontestimonial evidence. Several of these photographs, depicting Mayfield's external injuries, were in evidence and so available for the jury to evaluate directly. On this record, Dr. Fries did not “convey an absent analyst's statements” as required for the first prong of Smith's two-step test. See Smith, 602 U.S. at 783; Lawyer, 2026 WL 1853845 at * 7.

Because no testimonial hearsay from the absent medical examiner's autopsy report reached the jury, we overrule appellant's Confrontation Clause challenge.

III. Conclusion

In summary, under the Confrontation Clause, an autopsy report in Texas is not admissible without calling the medical examiner who created it.⁵ See Paredes, 462 S.W.3d at 517; Henriquez v. State, 580 S.W.3d 421, 429 (Tex. App.—Houston [1st Dist.] 2019, pet. ref'd). A substitute medical examiner must not recite, quote, or summarize statements from the absent medical examiner's report, such as the absent medical examiner's descriptions, observations, unphotographed measurements, and conclusions as to cause and manner of death. See generally Lawyer, 2026 WL 1853845 at *7; Lee, 418 S.W.3d at 899. The substitute medical examiner may rely on the autopsy report, but must come to his or her own conclusions and opinions using his or her own training and experience and cannot act as a surrogate for testimonial hearsay from the autopsy report. Lawyer, 2026 WL 1853845 at *7. If the State must call a substitute medical examiner, then its case should be built on the admissible evidence—such as photographs, as here—and the substitute medical examiner's independent analysis, rather than out-of-court conclusions of the absent medical examiner.

The Confrontation Clause is a shield against convictions based on the testimonial statements from an absent witness. It is not a rule requiring the exclusion of a qualified medical examiner simply because such expert did not personally perform the underlying autopsy. It is not a rule requiring the exclusion of an expert's analysis simply because the expert reviews and relies upon underlying information. What the Confrontation Clause forbids is testimonial hearsay that reaches the jury without confrontation. See Smith, 602 U.S. at 800, Paredes, 462 S.W.3d at 517–18.

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

FOOTNOTES

1.   By contrast, in Smith the substitute expert held a copy of the absent expert's notes while testifying and repeatedly answered questions from them with such responses as “according to the notes.” Smith, 602 U.S. at 797.

2.   These photographs were authenticated by the autopsy technician who took the photographs during the autopsy and admitted in evidence through his testimony.

3.   Appellant argues that because he was not present at the autopsy, Dr. Fries would not know if Dr. Roe accidentally caused the bleed in Mayfield's brain through mistakes in her autopsy technique and methods. Appellant's argument presents a hypothetical meant to undermine Dr. Fries's independent opinion: that is, whether blood vessels can bleed twenty-four hours after death and give the false appearance of bleeding and hemorrhaging in the brain as a cause of death. But appellant did not present this hypothetical during his cross-examination of Dr. Fries. See Smith, 602 U.S. at 799 (discussing availability of “any number of hypothetical questions” for the substitute lab analyst). Moreover, appellant's argument does not establish that Dr. Fries's testimony conveyed the absent medical examiner's testimonial hearsay.

4.   This testimony was consistent with Dr. Fries's testimony in the pre-trial hearing. Even in the pre-trial hearing, however, Dr. Fries was not cross-examined to determine the extent, if any, to which the autopsy report served as basis evidence for his own opinion.

5.   “In Texas, a medical examiner is required by law to conduct an inquest when a person dies under circumstances warranting the suspicion that death was caused by unlawful means.” Lee v. State, 418 S.W.3d 892, 896 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) (quoting Wood v. State, 299 S.W.3d 200, 209 (Tex. App.—Austin 2009, pet. ref'd)); see Tex. Code Crim. Proc. Ann. art. 49.25, § 6(a)(4). Though Texas courts have not held autopsy reports to be categorically testimonial, “[a]n autopsy report is considered testimonial when an objective medical examiner would reasonably believe that the report would be used in a later prosecution.” Henriquez v. State, 580 S.W.3d 421, 427–28 (Tex. App.—Houston [1st Dist.] 2019, pet. ref'd).

Brad Hart, Justice