IN THE
TENTH COURT OF APPEALS
No. 10-15-00111-CR
JUAN FRANCISCO SEGOVIA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2013-1209-C2
MEMORANDUM OPINION
The jury convicted Juan Francisco Segovia of the offense of murder and assessed
his punishment at 75 years confinement. We affirm.
Background Facts
There is no challenge to the sufficiency of the evidence. On October 14, 2012,
Anthony Degrate and his cousin, Edmund Jones, were leaving a nightclub in a vehicle
driven by Jones. They had an altercation in the parking lot with a person in a black Ford
Mustang and then a second altercation with that person at the parking lot exit. Jones
testified that after leaving the parking lot, the driver of the black Mustang pulled up next
to his vehicle while stopped at a red light. The driver of the black Mustang got out of his
vehicle and approached the vehicle of Jones and Degrate. Jones identified the person in
the black Mustang as Appellant. As Appellant approached their vehicle, Degrate opened
his door and struck Appellant. Degrate got out of the vehicle and he and Appellant were
“tussling.” Jones testified that he walked around to the back of his vehicle, and Degrate
was lying on the ground with blood on his shirt. Degrate suffered two stab wounds and
later died from his injuries.
In-Court Identification
In his first issue, Appellant argues that the trial court erred in failing to exclude
Jones’s in-court identification because it was tainted by an impermissibly suggestive
pretrial photo lineup. We review de novo a trial court's ruling on how the suggestiveness
of a pretrial photo array may have influenced an in-court identification. Gamboa v. State,
296 S.W.3d 574, 581 (Tex. Crim. App. 2009). A pretrial identification procedure may be
so suggestive and conducive to mistaken identification that subsequent use of that
identification at trial would deny the accused due process of law. Simmons v. United
States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); Barley v. State, 906 S.W.2d
27, 32-33 (Tex.Crim.App.1995), cert. denied, 516 U.S. 1176, 116 S.Ct. 1271, 134 L.Ed.2d 217
(1996). An in-court identification is inadmissible when it has been tainted by an
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impermissibly suggestive pretrial photographic identification. Luna v. State, 268 S.W.3d
594, 605 (Tex.Crim.App.2008).
To determine the admissibility of both pretrial identification and potentially
tainted in-court identification, we ask, considering the totality of the circumstances, (1)
whether the identification procedure was impermissibly suggestive and, if so, (2)
whether the improperly suggestive procedure created a very substantial likelihood of
irreparable misidentification. Simmons v. United States, 390 U.S. at 384, 88 S.Ct. at 971;
Barley v. State, 906 S.W.2d at 33. The defendant must prove both elements by clear and
convincing evidence. Barley v. State, 906 S.W.2d at 33-34. Only if we determine that the
pretrial identification procedure is impermissibly suggestive do we examine whether it
tainted the in-court identification. Id. at 34. Factors to be considered when making a de
novo review are: 1) the witness's opportunity to view appellant at the time of the crime;
2) the witness's degree of attention; 3) the accuracy of the witness's prior description of
the criminal; 4) the witness's level of certainty at the time of confrontation; and 5) the
length of time between the offense and the confrontation. Gamboa v. State, 296 S.W.3d at
582.
In his motion to suppress the identification, Appellant argued that the photo
lineup was impermissibly suggestive because his picture was different than the rest of
the photos and his posture in the picture was different from the others. At a pretrial
hearing, Appellant argued that the lineup was suggestive in that the others in the lineup
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were not of the same size, weight, age, and physical characteristics as Appellant. During
the trial, the trial court held a brief hearing on the motion outside the presence of the jury
and denied Appellant’s motion to suppress.
Jones described the assailant as being a Hispanic male in his 30’s and kind of short.
Another witness to the stabbing described the assailant as being a light skinned Hispanic
male between 20 and 30 years-old who was tall and slender. Detective Kristina Woodruff
with the Waco Police Department testified that she prepared a photo lineup of six men
and showed the lineup to Jones and the other witness. Jones viewed the photo lineup in
the back seat of the police car outside of his apartment because he was home with a sick
child. Jones identified Appellant from the photo lineup as the assailant, but the other
witness could not identify anyone from the photos as being the assailant.
Appellant argues on appeal that the photo lineup was suggestive in that his photo
is distinctive and stands out from the others. He contends the posture of his head is
different and that the photo is taken at a closer range than the others. He further argues
that he is the only slender person portrayed in the photos, that he is significantly older
than the others, and that two of the other persons in the photos have darker skin tones.
The record shows that all of the people in the photo lineup were Hispanic males
with birthdates within three years of Appellant’s birthdate. The men all had similar facial
hair and hair length. The pictures are all headshots from the chest up and do not reflect
height or weight. In his picture, Appellant’s head is slightly turned; however, it is not a
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remarkable difference from the other pictures. There is nothing to indicate that the
posture of his head in the photo was suggestive. Considering the totality of the
circumstances, we conclude the pretrial identification process conducted in this case was
not impermissibly suggestive. We overrule the first issue.
Expert Testimony
In his second issue, Appellant argues that the trial court erred in not allowing a
defense expert witness to testify. Texas Rule of Evidence 702 provides: "If scientific,
technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education may testify thereto in the form of an opinion or
otherwise." TEX.R.EVID. 702. Under Rule 702, it is the trial court's responsibility to
determine whether proffered scientific evidence is sufficiently reliable and relevant to
assist the jury. Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005); Jackson v.
State, 17 S.W.3d 664, 670 (Tex.Crim.App.2000). A trial court's ruling on the admissibility
of scientific expert testimony is reviewed under an abuse of discretion standard. Russeau
v. State, 171 S.W.3d at 881; Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000).
The proponent of scientific evidence must demonstrate to the trial court, by clear
and convincing evidence, that the scientific evidence is reliable. Russeau v. State, 171
S.W.3d at 881. The proponent of "hard" scientific evidence must satisfy three criteria to
demonstrate reliability: (1) the underlying scientific theory is valid; (2) the technique
Segovia v. State Page 5
applying the theory is valid; and, (3) the technique was properly applied on the occasion
in question. Russeau v. State, 171 S.W.3d at 881; Kelly v. State, 824 S.W.2d 568, 573 (Tex.
Crim. App. 1992). Other non-exclusive factors that could affect a trial court's
determination of reliability include: (1) the extent to which the underlying scientific
theory and technique are accepted as valid by the relevant scientific community, if such
a community can be ascertained; (2) the qualifications of the expert testifying; (3) the
existence of literature supporting or rejecting the underlying scientific theory and
technique; (4) the potential rate of error of the technique; (5) the availability of other
experts to test and evaluate the technique; (6) the clarity with which the underlying
scientific theory and technique can be explained to the court; and (7) the experience and
skill of the person who applied the technique on the occasion in question. Russeau v. State,
171 S.W.3d at 881-882; Kelly v. State, 824 S.W.2d at 573.
Appellant called Arthur Wah Young to testify outside the presence of the jury as
an expert witness. Young is a forensic biology specialist and has testified in court as an
expert in DNA comparisons. Young was called to testify on “the findings of the
laboratory and specifically the absence of certain results and how results from a foreign
contributor could have been obtained with a different approach to the examination of the
evidence.”
Young would testify about a technique known as “vacuum swabbing” and how
that process could have obtained foreign DNA profiles from the victim’s shirt. Young
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described the process of “vacuum swabbing” and stated that his company, Guardian
Forensic Services, is able to use the technique. Young did not know if the Texas
Department of Public Safety Crime Laboratory has formally adopted the use of the
technique. Young stated that he could not say that the DPS lab made any mistakes in
testing or did anything wrong, rather his “opinion is that if she had tested other areas or
had been provided samples that came from other areas, based on the case work
information, that you might be able to get someone other than the victim who was the
one who was wearing the shirt at the time.” He testified that someone should have used
the vacuum swabbing technique.
Young could not say whether any labs in Texas used by the public currently use
the vacuum swabbing technique. Young said the technique was presented in an article
in The Journal of the International Association of Identification “sometime in the early 2000s.”
Young did not know of any other publications or treatises proving the technique to be
reliable. Young further did not know if the vacuum swabbing technique had ever been
admitted in a Texas court as a qualified or reliable technique.
The trial court asked Young if the vacuum swabbing technique is accepted as valid
by DNA scientists. Young responded:
For the handful of DNA scientists that I know that have used it in the past,
then yes. The answer is yes. But the problem becomes, number one, what
is reliability when you’re testing a technique that is attempting to get very
low levels of DNA. There’s no frame of reference which to compare it to.
Number two, the number of articles that I’m aware of, just being the one,
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was simply an introduction to me of how the technology worked or how
the method worked.
Young further stated:
I don’t know if I can say if it’s been universally accepted because it’s such a
small handful that’s using it. But I have not heard any disagreements from
any scientist that it doesn’t work, that it’s not good. If anything, the one
comment that I’ve heard is that it works a little bit too well. It picks up too
much DNA.
The trial court excluded Young’s testimony based upon issues with the reliability of the
science.
Appellant did not meet his burden to show by clear and convincing evidence that
the scientific evidence of vacuum swabbing is reliable. Moreover, Young was called to
testify that the vacuum swabbing could have found DNA on the victim’s shirt. However,
Appellant never requested vacuum swabbing testing be conducted on the victim’s shirt.
The trial court did not abuse its discretion in excluding the testimony of Young. We
overrule the second issue.
Conclusion
We affirm the trial court’s judgment.
AL SCOGGINS
Justice
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 31, 2016
Do not publish
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