Full Opinion (html_with_citations)

Affirmed and Memorandum Opinion filed December 12, 2023.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-22-00513-CR

                     JARED HOLTON SEAVEY, Appellant

                                          V.

                        THE STATE OF TEXAS, Appellee

                    On Appeal from the 432nd District Court
                            Tarrant County, Texas
                       Trial Court Cause No. 1731280R

                           MEMORANDUM OPINION

      Appellant Jared Holton Seavy appeals from his conviction for murder. See
Tex. Penal Code Ann. § 19.02
. In two issues, appellant argues: (1) he was denied his
Sixth Amendment Right to confront the medical examiner who performed the
victim’s autopsy because the State used a “surrogate” witness to establish the
victim’s cause of death; and (2) there was an error in the jury charge because it failed
to include the lesser-included offense of aggravated assault. We affirm.1

                                       I.    BACKGROUND

         On August 17, 2019, appellant was indicted for the murder of Vanessa
Mayfield (“Mayfield”) for intentionally or knowingly causing Mayfield’s death by
stomping her with a deadly weapon, his foot. Appellant pleaded not guilty and
proceeded to trial before a jury.

         Susan Roe, M.D. (“Dr. Roe”), a deputy medical examiner at the Tarrant
County Medical Examiner’s Office, performed Mayfield’s autopsy. Prior to trial, the
State indicated to appellant that it intended to call Richard Fries, M.D. (“Dr. Fries”),
another deputy medical examiner at the Tarrant County Medical Examiner’s Office,
to testify concerning Mayfield’s cause of death at trial.2 The trial court held a pretrial
hearing to determine the admissibility of Dr. Fries’s testimony regarding Mayfield’s
cause of death. Dr. Fries explained that he formed an opinion on Mayfield’s cause
of death based on his review of Dr. Roe’s autopsy report of Mayfield and on
photographs from the autopsy. It was Dr. Fries’s opinion that Mayfield’s cause of
death was traumatic injuries to the head and neck.

         Appellant objected to the admission of Dr. Fries’s testimony based on the
Confrontation Clause, arguing that Dr. Roe was the only witness who could testify
concerning the autopsy and Mayfield’s cause of death. The trial court overruled
appellant’s objection and ruled that Dr. Fries’s testimony on the cause of death was
admissible.

         1
        This case is before this court on transfer from the Second Court of Appeals in Fort Worth,
Texas, pursuant to a docket equalization order issued by the Supreme Court of Texas. See Tex.
Gov’t Code Ann. § 73.001. We will apply the precedent of the Second Court to the extent it differs
from our own.
         2
             Dr. Roe left the Tarrant County Medical Examiner’s Office the year prior to appellant’s
trial.

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      The jury found appellant guilty of murder and assessed his punishment at
ninety-nine years’ imprisonment. This appeal followed.

                         II.   CONFRONTATION CLAUSE

      In his first issue, appellant argues he was denied his Sixth Amendment right
to confront the medical examiner who performed Mayfield’s autopsy because the
State used a “surrogate” witness, Dr. Fries, to establish Mayfield’s cause of death.

A.    STANDARD OF REVIEW & APPLICABLE LAW

      A trial court’s ruling on the admissibility of evidence is reviewed for an abuse
of discretion. Thomas v. State,
651 S.W.3d 102
, 110 (Tex. App.—Houston [14th
Dist.] 2021, pet. ref’d). We will not reverse the trial court’s evidentiary ruling if it
was within the zone of reasonable disagreement. Montgomery v. State,
810 S.W.2d 372, 391
 (Tex. Crim. App. 1991) (op. on reh’g). Therefore, we must uphold the trial
court’s ruling if it is reasonably supported by the record and is correct under any
theory of law applicable to the case. Willover v. State,
70 S.W.3d 841, 845
 (Tex.
Crim. App. 2002).

      The Confrontation Clause of the Sixth Amendment guarantees the accused the
right to confront the witnesses against him. U.S. Const. amend. VI. The
Confrontation Clause 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)).
Testimonial statements are those “that were 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 v. Washington,
541 U.S. 36, 52
 (2004)). Thus, the accused has a right to confront witnesses who
make out-of-court testimonial statements, including forensic analysts. See, e.g.,


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Bullcoming v. New Mexico,
564 U.S. 647, 651
 (2011); Crawford,
541 U.S. at 54
;
Paredes, 462 S.W.3d at 514–15.

       Forensic analysts may not testify as “surrogate[s]” regarding reports made by
other analysts. See Bullcoming,
564 U.S. at 661
 (holding that a “surrogate” could not
testify regarding what the certifying analyst “knew or observed about the events his
certification concerned . . . . Nor could such surrogate testimony expose any lapses
or lies on the certifying analyst’s part”). Therefore, “[w]hile the testifying expert can
rely upon information from a non-testifying analyst, the testifying expert cannot act
as a surrogate to introduce that information.” Paredes, 462 S.W.3d at 517–18.
However, expert witnesses may testify to their own independent conclusions, even
if they reached those conclusions by examining data collected by another analyst.
See Tex. R. Evid. 703;3 Paredes,
462 S.W.3d at 517
 (“For an expert’s testimony
based upon forensic analysis performed solely by a non-testifying analyst to be
admissible, the testifying expert must testify about his or her own opinions and
conclusions.”).

B.     ANALYSIS

       Dr. Fries testified at the pretrial hearing that, in forming his opinion on injuries
or cause of death, he will use the autopsy report produced by the physician that
conducted the autopsy, as well as photographs, radiographs, toxicology reports, and
other reports taken during the procedure. Dr. Fries further testified that these items
are reasonably relied upon by individuals in the field of forensic pathology in

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         An expert may base an opinion on facts or data in the case that the expert has been made
aware of, reviewed, or personally observed. If experts in the particular field would reasonably rely
on those kinds of facts or data in forming an opinion on the subject, then they need not be
admissible for the opinion to be admitted. Tex. R. Evid. 703. Unless the court orders otherwise, an
expert may state an opinion and give the reasons for it without first testifying to the underlying
facts or data; however, the expert may be required to disclose those facts or data on cross-
examination. Tex. R. Evid. 705(a).

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forming an opinion on an autopsy for which they were not present. Dr. Fries
explained he formed his opinion on reviewing Mayfield’s autopsy report and
pictures of her autopsy.

      Although Dr. Fries’s review of the autopsy file included the report made by
Dr. Roe, Dr. Fries acted as more than a mere surrogate for Dr. Roe’s autopsy report.
The record shows that Dr. Fries did not blindly recite Dr. Roe’s findings. Rather, his
testimony illustrates his independent work. His testimony was based on his
independent analysis of the autopsy report, toxicology report, radiology report, and
the autopsy photographs, which he explained during the State’s direct examination.

      Accordingly, because we conclude Dr. Fries did not act as a mere surrogate,
and offered his independent opinions, his testimony was permissible, and we
conclude the trial court did not err in admitting Dr. Fries’s testimony over appellant’s
Sixth Amendment confrontation clause objection. See Tex. R. Evid. 703; Harrell v.
State,
611 S.W.3d 431
, 439 (Tex. App.—Dallas 2020, no pet.) (concluding that
substitute medical examiner’s testimony, premised upon his independent review of
the autopsy file, did not violate the Confrontation Clause); see also Johnson v. State,
No. 14-22-00050-CR,
2023 WL 5217800
, at *3 (Tex. App.—Houston [14th Dist.]
Aug. 15, 2023, no pet. h.) (mem. op., not designated for publication) (same).

      Appellant argues that the trial court erred because it is possible that the
bleeding in Mayfield’s brain shown in the photographs could have been caused by
an error or improper technique during Dr. Roe’s autopsy and that appellant was
unable to confront and question Dr. Roe concerning this possibility. However,
appellant’s argument goes to the weight of Dr. Fries’s testimony, not its
admissibility. Further, appellant was free to question Dr. Fries concerning this
possibility to question the credibility of Dr. Fries’s opinion, but appellant did not do
so.

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      We overrule appellant’s first issue.

                               III.   JURY CHARGE

      In his second issue, appellant argues that the trial court erred by not including
the lesser included offense of aggravated assault in the jury charge.

A.    APPLICABLE LAW & STANDARD OF REVIEW

      In each felony case, the trial court shall deliver to the jury a written charge
distinctly setting forth the law applicable to the case. Tex. Code Crim. Proc. Ann.
art. 36.14. A review of alleged jury charge error involves a two-step process
examining: (1) whether error existed in the charge; and (2) whether sufficient harm
resulted from the error to compel reversal. See Ngo v. State,
175 S.W.3d 738
, 743–
44 (Tex. Crim. App. 2005); Jones v. State,
531 S.W.3d 309, 321
 (Tex. App.—
Houston [14th Dist.] 2017, pet. ref’d).

      When the defendant fails to object, as in this case, we will not reverse for jury-
charge error unless the record shows “egregious harm” to the defendant. Ngo v.
State,
175 S.W.3d 738
, 743–44 (Tex. Crim. App. 2005) (Almanza v. State,
686 S.W.2d 157, 171
 (Tex. Crim. App. 1984) (op. on reh’g)). Egregious harm deprives
appellant of a fair and impartial trial. See
id.
 In the egregious-harm analysis, we
consider (1) the charge itself; (2) the state of the evidence, including contested issues
and the weight of the probative evidence; (3) arguments of counsel; and (4) any other
relevant information revealed by the trial record as a whole. See Taylor v. State,
332 S.W.3d 483, 489
 (Tex. Crim. App. 2011).

B.    ANALYSIS

      Appellant did not object to the jury charge. Assuming without deciding that
the trial court erred in its charge, we nevertheless conclude that appellant did not
suffer egregious harm.

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      Here, the charge correctly instructed the jury on the offense of murder and
tracked the offense as alleged in the indictment. There was substantial evidence that
appellant severely assaulted Mayfield by stomping on her with his foot and left her
unconscious. There were multiple sources of evidence directly linking appellant to
Mayfield’s assault. There also was evidence that appellant was aware that Mayfield
could have died from the assault and that he told detectives he stomped on
Mayfield’s head as many as fifty times. We conclude that the jury-charge error
alleged by appellant did not deprive him of a fair and impartial trial. See Taylor,
332 S.W.3d at 489
; Ngo, 175 S.W.3d at 743–44.

      We overrule appellant’s second issue.

                               IV.    CONCLUSION

      We affirm the trial court’s judgment.




                                              /s/ Margaret “Meg” Poissant
                                              Justice




Panel consists of Justices Bourliot, Hassan, and Poissant.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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