Dion Jones A/K/A Dion Cortez Jones v. the State of Texas

                         NUMBER 13-24-00196-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG


DION JONES
A/K/A DION CORTEZ JONES,                                                 Appellant,

                                         v.

THE STATE OF TEXAS,                                                       Appellee.


            ON APPEAL FROM THE 211TH DISTRICT COURT
                   OF DENTON COUNTY, TEXAS


                         MEMORANDUM OPINION

     Before Chief Justice Tijerina and Justices West and Fonseca
             Memorandum Opinion by Justice Fonseca

      Appellant Dion Jones a/k/a Dion Cortez Jones was convicted of murder, a first-

degree felony, and was sentenced to life imprisonment. See TEX. PENAL CODE ANN.

§ 19.02. On appeal, he contends by one issue that the trial court erred by admitting

testimony regarding autopsy results by a physician who did not perform the autopsy. We
affirm.1

                                       I.      BACKGROUND

       Trial testimony established that police received a report of an unconscious person

at an apartment in Lewisville on March 18, 2022. When they arrived, they found Aiyah

Roseborough deceased on the floor of the apartment, with a white phone charging cord

“wrapped around her throat” and a “ligature mark” consistent with the cord on her neck.

Officers noted there were “a bunch of scuff marks” on the wall near where Roseborough

was found, and it appeared as if the marks had “pieces of her hair” in them.

       Brendalyn Duplessis testified that Roseborough was her friend since childhood,

and she knew Jones because he was in a relationship with Roseborough and often stayed

over at her apartment. On March 18, 2022, Duplessis tried calling Roseborough but

received no answer, which was unusual. Instead, Duplessis received texts from

Roseborough’s phone stating, “Just text me.” Duplessis then texted Jones to inquire

about Roseborough’s whereabouts. Jones replied that he and Roseborough had gotten

into an argument and that “she left and she [turned] her phone off.” That evening,

Duplessis went to Roseborough’s apartment, and she found the door unlocked. She

discovered her friend’s dead body and called 911. Roseborough was twenty-four years

old and had a one-year-old son at the time of her death.

       Duplessis testified that Jones began texting her again about an hour after officers

arrived, while she was sitting in a police car talking to a detective. The text exchanges

were entered into evidence. In one of them, Jones said that Roseborough turned her



       1 This appeal was transferred from the Second Court of Appeals in Fort Worth pursuant to an order

issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001. We are required to follow the
precedent of the transferor court to the extent it differs from our own. TEX. R. APP. P. 41.3.


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phone off because of “some s[***] I did to her.” Later, he texted Duplessis: “Aiyah dead

bro. . . . She tried to stab me. . . . She seen some s[***] in my phone. Somebody texted

me this morning and she had my phone at work. She blew it out of proportion.”

       Subsequently, at the direction of the detective, Duplessis texted Jones that

Roseborough was hurt but was still alive. Jones replied: “You just lifted the biggest weight

o[ff] my shoulder. I thought I killed her.” Duplessis then told Jones that Roseborough was

in a room with paramedics, that she was refusing to go to the hospital, and that she had

told police that “she fell and hit her head.” Duplessis then began sending texts to Jones

pretending to be Roseborough. At one point, Jones asked, “You hear what I told you

before you blacked out?” He also asked, “Why you ain’t tell on me[?]”

       Kapri Thompson testified that she was previously in a romantic relationship with

Jones, that they remained friends, and that she hung out with Jones and Roseborough

on March 17, 2022. The next day, Thompson went to Roseborough’s apartment, and

Jones was there. Jones was complaining about having lost his phone, and so he used

Thompson’s phone to call Roseborough. According to Thompson, Jones and

Roseborough engaged in a “heated argument” over the phone and via text. Thompson

could not hear the details of the conversation but gathered that Roseborough wanted

Jones to leave the apartment.

       Later, Thompson and Jones went to Thompson’s apartment, and Roseborough

stopped by there to drop off Jones’s phone. Jones left Thompson’s apartment that

afternoon, and when he came back around 8:00 p.m., he told Thompson that he and

Roseborough got into an argument which “got a little physical.” Later in the evening,

Thompson and Jones went to Jones’s mother’s house, and on the way, they drove past



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Roseborough’s apartment, where a police car was stationed outside the gate. Thompson

said Jones did not ask the officer what happened but rather made a U-turn.

        Thompson testified that, while she and Jones were drinking together on March 19,

2022, she asked him about what happened with Roseborough. According to Thompson,

Jones reported that he had grabbed Roseborough “by the arm trying to calm her down,”

but Roseborough “grabbed a knife” and tried to stab him, so he “choked her out.”

        Based on the text messages, police identified Jones as a suspect. Detective Jeff

Carey of the Lewisville Police Department interviewed Jones in jail after his arrest on

March 20, 2022.2 According to Carey, Jones stated he and Roseborough were in an

argument, that she threatened him with a knife,3 and that

        he choked her with his hands. And after he was done choking her with [his]
        hands, she kept making noise. And because . . . she kept making noise, he
        took the cord, wrapped it around her neck, and—until she wasn’t making
        any noise again. Then he kissed her on her forehead and left.

        Jones testified in his own defense. He stated that, on the morning of March 18,

2022, Roseborough discovered that a woman had sent nude photos of herself to Jones’s

cell phone, and she demanded that he leave her apartment. Jones then “bagged up all of

[Roseborough’s] stuff” because he was “mad, upset, being petty.” According to Jones, he

left the apartment but returned later in the day, at which point Roseborough “punched”

and slapped him and screamed obscenities at him. Jones said he “turned to leave” when

he saw “she was lunging at [him] with a knife.” He testified:

        I’m just trying to evade, because she didn’t come for my face. She was

          2 Carey testified that he administered Miranda warnings to Jones and that Jones voluntarily waived

his rights. A video recording of the interview was entered into evidence, and portions of it were played for
the jury.
        3 Jones told officers where the knife was located, and they returned to the scene and collected it

as evidence. A forensic scientist testified that a partial DNA profile was retrieved from the knife, and that
neither Jones nor Roseborough could be excluded as possible contributors to the profile.


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      trying to get me in my body. And I was like, Okay. And she came at me this
      time, but for my face. When she came for my face, I didn’t sidestep. I stood
      there, but I weaved. And she came back the next time. I ducked, and I
      grabbed her by—I grabbed her by her neck and dropped her with my leg
      and took her to the ground and I choked her. . . . I choked her with both of
      my hands forward on top of her.

      ....

      The knife is still in her hand. . . . . She tried to hit me with the knife. How I
      was positioned over her, I just threw my shoulder up. Her . . . forearm hit
      my shoulder. The knife came right across my face both times, and . . . I
      applied more pressure. I’m not going to lie. I applied more pressure, and all
      I told her was to drop the knife, drop the knife, drop the knife, drop the knife.
      And I’m not—[in] my mind, I’m not letting go until she drops that knife.

Jones said Roseborough then “passed out” and dropped the knife; however, she “came

to” shortly thereafter, “regained possession” of the knife, and lunged at him again. He

stated:

      I grabbed the phone cord. And when she swung at me—I had already had
      in my mind, if she swing at me, she has one swing. And she swung it and I
      ducked under her and I wrapped the cord around her neck and I threw her
      to the ground. Like, we both flew to the ground. . . . I pulled with the cord,
      took her to the ground.

Jones said that Roseborough continued to act like she was trying to stab him, so he

“pulled harder” and demanded that she drop the knife. Eventually, she stopped moving,

and Jones took the knife from her hands and put it away.

      Jones testified that, when Roseborough “tried to stab [him] in the face,” he became

afraid that he would be seriously injured or killed. He said he did not call 911 because he

feared that he would be blamed “[r]egardless of if I was defending myself or not.”

      The jury was instructed on the justifications of self-defense and deadly force in

defense of a person. See TEX. PENAL CODE ANN. § 9.31(a) (providing generally that “a

person is justified in using force against another when and to the degree the actor

reasonably believes the force is immediately necessary to protect the actor against the


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other’s use or attempted use of unlawful force”); id. § 9.32(a) (“A person is justified in

using deadly force against another: (1) if the actor would be justified in using force against

the other under [§] 9.31; and (2) when and to the degree the actor reasonably believes

the deadly force is immediately necessary . . . to protect the actor against the other’s use

or attempted use of unlawful deadly force”). It found Jones guilty of murder and assessed

punishment at life imprisonment. This appeal followed.

                                     II.    DISCUSSION

       By a single issue on appeal, Jones argues it was error to admit the testimony of

Steven Hemberger, M.D., regarding the results of an autopsy performed by the Tarrant

County Medical Examiner’s Office “when he was not employed with the office at the time

of the autopsy.”

A.     Standard of Review and Applicable law

       “We review a trial court’s ruling on the admissibility of evidence under an abuse of

discretion standard, and we must uphold the trial court’s ruling if it was within the zone of

reasonable disagreement.” Wells v. State, 611 S.W.3d 396, 427 (Tex. Crim. App. 2020).

       The Confrontation Clause, applicable to the states via the Fourteenth Amendment,

guarantees an accused the right to confront and cross-examine adverse witnesses. U.S.

CONST. amends. VI, XIV; Vinson v. State, 252 S.W.3d 336, 338 (Tex. Crim. App. 2008);

Clark v. State, 282 S.W.3d 924, 930 (Tex. App.—San Antonio 2009, pet. ref’d). A

statement offered against a defendant may implicate the Confrontation Clause even when

it is admissible under evidentiary rules. Clark, 282 S.W.3d at 930. An out-of-court

statement implicates the Confrontation Clause whenever it is: (1) made by a witness who

is absent from trial and (2) testimonial in nature. Woodall v. State, 336 S.W.3d 634, 642



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(Tex. Crim. App. 2011). A statement is testimonial if “the primary purpose of the

interrogation is to establish or prove past events potentially relevant to later criminal

prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006). Whether a statement is

testimonial is judged “by the standard of an objectively reasonable declarant standing in

the shoes of the actual declarant.” Wall v. State, 184 S.W.3d 730, 742–43 (Tex. Crim.

App. 2006) (citing Crawford v. Washington, 541 U.S. 36, 52 (2004)). Because trial courts

are no better equipped to apply this standard than appellate courts, we review whether a

statement is testimonial de novo. Id.

       “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.” Paredes v. State, 462 S.W.3d 510, 517–18 (Tex. Crim.

App. 2015). “While the testifying expert can rely upon information from a non-testifying

analyst, the testifying expert cannot act as a surrogate to introduce that information.” Id.

(concluding, where the testifying expert referred to results of DNA tests performed by non-

testifying analysts, that the expert’s testimony was nevertheless admissible under the

Confrontation Clause because she “performed the crucial analysis determining the DNA

match and testified to her own conclusions”); see Bullcoming v. New Mexico, 564 U.S.

647, 661–62 (2011) (noting that “surrogate [expert] testimony” violated the Confrontation

Clause because it “could not convey what [the non-testifying analyst] knew or observed

about the events his certification concerned” nor could it “expose any lapses or lies on

the [non-testifying] analyst’s part”); see also Melendez-Diaz v. Massachusetts, 557 U.S.

305, 329 (2009) (“The Sixth Amendment does not permit the prosecution to prove its case

via ex parte out-of-court affidavits . . . .”).



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B.    Analysis

      Hemberger, a forensic pathologist, testified that he began working as a deputy

medical examiner at the Tarrant County Medical Examiner’s Office in 2023. He said he

reviewed Roseborough’s autopsy, which was performed by Sam Andrews, M.D., who no

longer works with the medical examiner’s office, and with whom Hemberger was

unacquainted.

      When asked what injuries he observed from the autopsy photos, Hemberger

testified he noticed a “ligature” as well as abrasions and hemorrhaging on her neck;

petechiae on her face, eyelids, and mouth lining; a contusion on her tongue; and

abrasions on her hands. He said the presence of petechiae indicates that “there was

some type of compressive force preventing the blood to recirculate,” and he agreed that

it was consistent with strangulation. Hemberger also stated that Roseborough’s “brain

was edematous or swollen, and that can be a sign from anoxic brain injury, meaning that

they’re not getting any oxygen to the brain and it swells up.” Over defense counsel’s

Confrontation Clause objection, Hemberger opined that the manner of death was

homicide, and the cause of death was strangulation.

      On appeal, Jones argues that Hemberger’s testimony regarding the cause and

manner of death was inadmissible under the Confrontation Clause because (1) the State

did not establish that Andrews was unable to testify, and (2) the defense had no

opportunity to cross-examine Andrews. Citing Lee v. State, 418 S.W.3d 892, 899 (Tex.

App.—Houston [14th Dist.] 2013, pet. ref’d), and Wood v. State, 299 S.W.3d 200, 209

(Tex. App.—Austin 2009, pet. ref’d), Jones contends that the admission of Hemberger’s

testimony was a “back[]door[ ]way to enter the autopsy report of [Andrews] without



                                          8
entering the actual document.”

       We disagree. The cases cited by Jones—both of which involve testimony

regarding autopsy results by a physician other than the one who performed the autopsy—

are instructive. In Wood, the court held that, to the extent the testifying physician

expressed his “own opinions regarding the nature and causes” of the death, that did not

offend the Confrontation Clause “even though those opinions were based in part on [his]

review of [the examining physician’s] autopsy report.” 299 S.W.3d at 213 (noting that,

“[w]hen an expert bases an opinion on testimonial hearsay but does not disclose the

testimonial hearsay on which that opinion is based, the jury hears only the expert’s direct,

in-court testimony”). In that case, however, the testifying expert “did more than merely

offer his expert opinions[; h]e also disclosed to the jury the testimonial statements in the

autopsy report on which his opinions were based.” Id. The court held the admission of

those “testimonial statements” violated appellant’s right to confront the examining

physician, though it also held the error was harmless. Id. at 214–15. The Lee court

similarly held that, though the testifying physician’s “conclusions based on [his]

independent examination of the autopsy photographs” were admissible, the provision of

“the [autopsy] report itself” to the jury violated the Confrontation Clause. 418 S.W.3d at

899; see Paredes, 462 S.W.3d at 517 (“The admission of a lab report created solely by a

non-testifying analyst, without calling that analyst to sponsor it, violates the Confrontation

Clause.”).

       Here, Hemberger reviewed Andrews’s autopsy report, including photographs, but

he did not testify as to any statements made in the report, testimonial or otherwise, and

the report itself was never entered into evidence or provided to the jury. The transferor



                                              9
court has held in a very similar case that a non-examining physician’s opinions regarding

the manner and cause of death, based on his review of an autopsy he did not perform,

did not implicate the Confrontation Clause. Williams v. State, 513 S.W.3d 619, 637–38

(Tex. App.—Fort Worth 2016, pet. ref’d) (noting that the non-examining physician’s

“testimony was based on his own observations, conclusions, and expertise” and that

“autopsy photographs are nontestimonial in nature for confrontation purposes”). Jones

offers no reason to deviate from Williams; therefore, we conclude there was no

Confrontation Clause violation in this case. See id.

       As the State notes, Jones also does not offer any cogent argument for how the

admission of the challenged testimony harmed him. See TEX. R. APP. P. 38.1(i). Even if

we were to find that the trial court committed constitutional error by denying Jones’s

objection, he would not be entitled to reversal because the error did not contribute to his

conviction or punishment. See TEX. R. APP. P. 44.2(b). Jones baldly claims, without

reference to authority or the record and without elaboration, that “[t]he statements from

[Hemberger] are essential to the State’s case.” But the cause and manner of

Roseborough’s death were not disputed in this case. The evidence—including the

testimony of the responding officers, Duplessis, Thompson, and Jones himself—

unanimously established that the death was caused by strangulation and was intentional.

The only genuine dispute at trial was whether Jones was justified in causing the death

under a self-defense theory. The jury rejected that theory, and there is no reason to think

that it would have reached a different conclusion had Hemberger not testified as to the

manner and cause of Roseborough’s death. We conclude beyond a reasonable doubt

that the admission of the challenged testimony did not contribute to Jones’s conviction or



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punishment. See id. Jones’s issue on appeal is overruled.

                                   III.   CONCLUSION

       We affirm the trial court’s judgment.

                                                            YSMAEL D. FONSECA
                                                            Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed on the
10th day of July, 2025.




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