Guy, Lester Ray

Opinion

PD-1564-14

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 2/26/2015 12:32:54 PM No. PD-1564-14 Accepted 2/26/2015 4:28:05 PM ABEL ACOSTA

CLERK

IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

LESTER RAY GUY

Petitioner

v.

The State of Texas

Respondent

On Appeal In Case Number D1DC 10-302548 From the 331 TH District Court of Travis County The Hon. David Crain, Presiding Judge Third Court of Appeals No. 03-12-00466-CR

Petition for Discretionary Review Submitted by:

The Law Offices of Ariel Payan 1012 Rio Grande Austin, Texas 78701 Tel. 512/478-3900 Fax: 512/472-4102

February 26, 2015

Ariel Payan

State Bar No. 00794430

Court-Appointed Attorney for Petitioner

Oral Argument Requested

Table of Contents

Certificate of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Grounds for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

1) Can an expert discount part of a test as unsound, while relying on another part of the same test, when there are no standards by which he can be held accountable? . . . . . . . . . . . . . . . . . . . 2

2) The appellate court erred finding that the test relied upon met the standards of Daubert/ Kelly for reliability and admissibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Certificate of Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

i

Certificate of Parties

Pursuant to Rule 68, Rules of Appellate Procedure (“Tex.R.App.Pro.”), the following

is a complete list of the names and addresses of all parties to the trial court’s final judgment

and their counsel in the trial court, as well as appellate counsel.

Petitioner

Lester Ray Guy TDCJ-ID No. 297393

Clements Unit 9601 Spur 591 Amarillo, TX 79102

Appellate Counsel: Trial Counsel: PDR Counsel: Ariel Payan Ariel Payan 1012 Rio Grande Jon Evans Austin, Texas 78701

State of Texas

Rosemary Lehmberg

P.O. Box 1748 Austin, TX 78767

Appellate Counsel: Trial Counsel: Scott Talliaferro Jim Young

State Prosecuting Attorney Matt Foye Lisa C. McMinn

Trial Judge

Honorable David Crain, 331 presiding.

ii

Index of Authorities

Federal Cases:

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) . . . . . . . . . . . . . . . . . . . . 3, 7, 8

Texas Cases:

Jordan v. State, 928 S.W.2d 550, 554–55 (Tex.Cr.App. 1996) . . . . . . . . . . . . . . . . . . . . . . 8

Kelly v. State, 824 S.W.2d 568, 572-73 (Tex.Cr.App. 1992) . . . . . . . . . . . . . . . . . . . 3, 7, 8

Reynolds v. State, 204 S.W.3d 386, 390 (Tex.Cr.App. 2006) . . . . . . . . . . . . . . . . . . . . . . . 7

Williams v. State, 937 S.W.2d 479, 483 (Tex.Cr.App. 1996) . . . . . . . . . . . . . . . . . . . . . . . 3

iii

Statement Regarding Oral Argument

Oral Argument is Requested and would assist the Court in deciding this novel confluence of scientific evidence and our criminal laws.

Statement of the Case

Pursuant to Tex.R.App.Pro. 68.4(d), the following is a brief general statement of the

case:

Petitioner, Lester Ray Guy, was charged by indictment with the offense of capital murder, a felony, in Cause No. D1DC 10-302548 in the 331 rd District Court of Travis County, Texas. He was convicted in said cause and was sentenced to life. The Court of Appeals affirmed the decision below.

Statement of Procedural History

Pursuant to Tex.R.App.Pro. 68.1(d), Petitioner would show the following:

The Third Court of Appeals denied Petitioner’s appeal on October 22, 2014.

Motion for rehearing and reconsideration was filed and denied on December 11, 2014.

The Third Court of Appeals has decided an important question of state and federal law that has not been, but should be, settled by this Court. The Third Court of Appeals has misapplied a statute in deciding this case.

iv

Grounds for Review

Pursuant to Tex.R.App.Pro. 68.4(f), the following are the reasons this petition should be heard

1) Can an expert discount part of a test as unsound, while relying on another part of the same test, when there are no standards by which he can be held accountable?

2) The appellate court erred finding that the test relied upon met the standards of Daubert/ Kelly for reliability and admissibility.

v

No. PD-1564-14

IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

LESTER RAY GUY

Petitioner

v.

The State of Texas

Respondent

On Appeal In Case Number D1DC 10-302548 From the 331 TH District Court of Travis County The Hon. David Crain, Presiding Judge Third Court of Appeals No. 03-12-00466-CR

Petition for Discretionary Review TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW, Lester Ray Guy, Petitioner in the above styled and numbered cause, by

and through Ariel Payan, his undersigned attorney of record, and respectfully files this

“Petition for Discretionary Review,” filed pursuant to Tex.R.App.Pro. 68.

2

Argument

1) Can an expert discount part of a test as unsound, while relying on another part of the same test, when there are no standards by which he can be held accountable?

The State’s experts testified that the DNA test used in this case were effective, reliable,

and widely used, especially in cases where DNA has degraded or is of low quantity, despite

the fact that it targets only eight of the fifteen loci targeting by the regular STR test. The

State’s experts also testified that this test had not been validated by the lab that conducted the

analysis, and they could not say what the minimum standards were for an appreciable return,

or what standards had to be followed when, as happened here, there was an issue regarding

one of the loci. The test conducted was consistent with Appellant in seven loci, at the eighth

the State’s experts discounted their findings. Appellant did not match at this location and had

it been included Appellant would have been excluded as a suspect.

The test used had not been validated through the lab’s own internal testing regime. The

validation had begun over a year prior to Appellant’s trial, but at the time of trial the State’s

experts testified that the validation report was still ongoing. Without the completion of the

study there was no standard by which the State’s expert could discount the return at the non

conforming loci.

3

A trial court's responsibility is to determine whether proffered scientific evidence is

sufficiently reliable and relevant to assist the jury. See, Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579 (1993); Kelly v. State, 824 S.W.2d 568, 572-73 (Tex.Cr.App. 1992). The

appellate court’s duty is to act as a due process safeguard ensuring only the rationality of the

jury in reviewing the evidence presented. Williams v. State, 937 S.W.2d 479, 483

(Tex.Cr.App. 1996).

The instant case involves the rape and murder of Hazel Ivy in 1978. An autopsy was

done and slides were developed from oral, anal and two vaginal swabs. These slides were

dyed and placed under glass, then stored in the coroners office in an unrefrigerated box for

twenty two years, until collected by Austin Police. (R.R. Vol. 3, pg. 13). In 2001 DPS did

a test of the Vagina 1 slide, and got a return at 3 loci. (R.R. Vol. 3, pg. 15). Further testing

was not done until 2008 by Orchid Cellmark.

The State called Huma Nasir, a DNA forensic analyst at Orchid Cellmark in Dallas.

Nasir testified that she was hired to test DNA samples using a new testing protocol known

as miniFiler-STR. (R.R. Vol. 7, pg. 305). Whereas Profiler and Identifiler STR test kits test

15 loci, and require a larger genetic sample to test, miniFiler-STR looks only at 8 of these

same loci, plus the ameloginin (sex marker) and requires a much smaller amount of genetic

material to create a return. (R.R. Vol. 7, pg. 138). The FBI and CODIS databases are based

upon the 15 STR loci, and require anywhere from 13 to 15 loci at a minimum to run a search.

(R.R. Vol. 7, pg. 311). Orchid began testing miniFiler back in 2008 and began doing

4

feasability and validation studies on the product at that time. (R.R. Vol. 7, pg. 141). The

miniFiler manufacturer had validated their test kit for 500 picograms, as an optimum amount

of genetic material. (R.R. Vol. 7, pg. 160). The manufacturer validated a full volume

reaction at 25 micro liters of genetic material. Id. At the time of trial Orchid was still doing

studies on the product. Orchid had completed a stochastic threshold study in 2011, studying

the allelic drop out in small or degraded samples. (R.R. Vol. 7, pg. 143). These stochastic

studies were done with 250 picograms of genetic material as a testing standard. (R.R. Vol.

7, pg. 157-158). They had also internally validated using half the 25 micro liter volume

required by the manufacturer of miniFiler. (R.R. Vol. 7, pg. 161). When the test in this case

was run, Orchid had not completed the validation of this stochastic study, and at the time of

trial, Nasir was still working with the lab director to try and determine what the stochastic

threshold should be when reviewing results. (R.R. Vol. 7, pg. 149). Nasir testified that they

had done a study on the peak height ratio for miniFiler and determined it to be 100 RFU’s,

but the Orchid lab director had wanted to do additional studies after reviewing it. (R.R. Vol.

7, pg. 150-151). All of these internal validation studies, to allow the company to process and

test below the manufacturers recommended test protocols, are not peer reviewed in any way,

they are not published nor verified by anyone not working for the company. (R.R. Vol. 7, pg.

161).

Dr. Laurence Mueller, Professor at University of California at Irvine, was called by the

defense to testify regarding the DNA testing in this case. (R.R. Vol. 8, pg. 101). Mueller did

5

not agree with the analysis regarding the allelic drop out of the FGA allele. (R.R. Vol. 8, pg.

106-7). Mueller testified that this sample was amplified and tested twice, and in both the

FGA showed only a 19. Id. In normal STR testing a homozygote return is usually indicated

by a higher than normal peak height compared to the rest of the sample. (R.R. Vol. 8, pg.

106). That determination cannot be made so simply in a miniFiler test, because the peak

heights vary so much within a single sample so traditional stochastic modeling is not

effective. Id.

In addition, Mueller stated that there are a lot of allelic drop out studies ongoing to try

and answer this exact question of how frequent the drop out occurs in miniFiler testing of

degraded samples. (R.R. Vol. 8, pg. 107). These tests would be moot if a scientist could, just

look at the data and cast out a loci because it did not match a suspect sample. Id. Mueller

testified that the generally accepted stochastic threshold for DNA labs is 100 RFU’s, the same

standard that Nasir testified about for Orchid. (R.R. Vol. 8, pg. 108). This means that if a

peak height is above this threshold a lab can feel confident that they have a viable return at

that loci, and that they have a very low chance of allelic dropout, whereas below that

stochastic threshold allelic dropout is much more likely and becomes a bigger concern in the

testing. (R.R. Vol. 8, pg. 109).

Mueller testified that this issue is critical for the jury to understand because if there was

no allelic dropout then Appellant is excluded as the contributor of the suspect DNA. (R.R.

Vol. 8, pg. 113). Mueller said that the way an expert determines whether or not dropout has

6

occurred is to look to the electropherogram readings. If you look at the returns and it shows

some return at a particular location then you may have allelic dropout. Id. But, as he

testified, if you have as was shown here a very nice peak, 357 RFU’s, at 19 and then you

don’t see any return, at all, at the 23 allele location, not even a hint at the 20 to 50 RFU scale

then you know you don’t have any indication of allelic dropout. (R.R. Vol. 8, pg. 113-114

& 116-117).

Mueller then compared the DPS lab returns on the vagina 1 sample done back in 2001,

at the FGA location to Orchid’s returns on the vagina 2 slide at the same loci. Both labs, in

separate tests at separate times had a 19 return at the FGA loci, neither indicated an allele at

23. (R.R. Vol. 8, pg. 117). Mueller reviewed the raw data and electropherograms from the

DPS 2001 DNA test on vagina slide 1. Mueller testified that there were some irregularities

on the epithelial cell fraction tests, and the DPS analyst noted this and discounted the E cell

fraction DNA testing. (R.R. Vol. 8, pg. 119). When DPS conducted the DNA testing on the

sperm cell fraction no such notes were made and the returns generated results, which DPS,

APD and Orchid used in their investigation. Id. The DPS results showed only a 19 at the

FGA location and the lab summized that the suspect was a homozygote at FGA (19, 19).

(R.R. Vol. 8, pg. 119-120).

Mueller then discussed another loci from the DPS report. The DPS report showed that

the vagina 1 slide at D21 returned alleles at position 29, 30. (R.R. Vol. 8, pg. 120).

Appellant’s D21 loci is 30, 31. Id. A return which would exclude Appellant as a suspect.

7

Mueller discussed the ongoing research issues with allelic dropout in the scientific

community. (R.R. Vol. 8, pg. 128 et seq.). Muller testified that if you have to look at a

defendant to determine whether allelic dropout has occurred, as was done here, then you are

no longer doing science, you are adjusting your results to meet your suspect profile. (R.R.

Vol. 8, pg. 128). Scientists are also working on how to include this allelic dropout probability

into the mathematical calculations so as to give better, more accurate and truthful results. Id.

Scientific testimony must be both reliable and relevant in helping the jury reach a

conclusion in a case. Kelly, 824 S.W.2d at 572; see Daubert, 509 U.S. 579. Under Kelly,

scientific evidence must meet three criteria to be considered sufficiently reliable as to be of

help to a jury: (1) the underlying scientific theory must be valid; (2) the technique applying

the theory must be valid; and (3) the technique must have been properly applied on the

occasion in question. Reynolds v. State, 204 S.W.3d 386, 390 (Tex.Cr.App. 2006). The test

used here by Orchid did not meet these criteria. Validity is a core requirement of

Daubert/Kelly, and those internal validity tests which would allow the lab to testify about a

reduced and degraded sample size had not been completed.

The appellate court failed to apply the proper standard of review in this case. In

holding that the jury was free to believe whomever they wanted, as much or as little, the

appellate court failed to hold the state, as proponent of the evidence

8

2) The appellate court erred finding that the test relied upon met the standards of Daubert/ Kelly for reliability and admissibility.

A trial court's responsibility under Texas Rule of Criminal Evidence 702 is to

determine whether proffered scientific evidence is sufficiently reliable and relevant to assist

the jury. See, e.g., Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Kelly v.

State, 824 S.W.2d 568, 572-73 (Tex.Cr.App. 1992); Jordan v. State, 928 S.W.2d 550,

554–55 (Tex.Cr.App. 1996). The proponent of the scientific evidence bears the burden of

demonstrating by clear and convincing evidence that the evidence is reliable. This is

accomplished by showing: (1) the validity of the underlying scientific theory; (2) the validity

of the technique applying the theory; and (3) proper application of the technique on the

occasion in question. Kelly, 824 S.W.2d at 573.

In the instant case, the defense challenged the admissibility of two experts opinions.

The defense challenged the admissibility of the miniFiler STR test, through Huma Nasir, and

the opinion of Ranajit Chakraborty dealing with the statistical analysis from his report.

Appellant adopts those sections entitled Orchid Cellmark Test and Dr. Ranajit Chakraborty

from the legal sufficiency point of error, supra, for this point of error.

The miniFiler test kit as validated by the manufacturer required more than three times

the material used to test in this case. In addition, it required more than twice the volume of

testing material after amplification as was used here. The validation and studies done by

Orchid were not peer reviewed, nor do they contain an error rate determination. In addition,

9

Orchid had not even completed their stochastic threshold study prior to testing or even prior

to trial. Without an objective stochastic threshold it is left entirely to the analyst to determine

whether or not a loci return is valid. Orchid had initially declared that threshold to be 100

RFU’s but had later pulled that threshold, but still continued to run their tests without a

standard protocol for analyzing their results. Nothing exemplifies this problem better than

the issue that was created in this case by the FGA loci. If the threshold was 100 RFU’s then

the FGA result in this case excludes Appellant as a suspect because it was over that threshold

and there was no other standardized indicator that would indicate that there was allelic

dropout (no peak at all at the FGA 23 location). But since there is no stochastic threshold the

State’s experts could ignore that loci and thereby include Appellant.

Chakraborty’s testimony deals with these same issues and his opinion is again based

on the same lack of validated standards in the Orchid tests. The State experts discount the

need for a stochastic threshold, yet they both rely upon and discuss a threshold finding as part

of making their determinations that the other 7 alleles are valid. Indeed, Nasir runs a whole

second test because the first test did not return result above ‘the threshold’ that she then later

says she doesnt have. (R.R. Vol. 7, pg. 154). Chakraborty’s testimony in agreeing with and

relying upon the Orchid results is thereby tarred with the same problem the makes the Orchid

results fall below the Daubert standard for reliability.

10

Appellant would respectfully request that this Court find that the appellate court failed

to utilize the proper standard of review in analyzing the admissibility of the miniFiler tests in

this case.

11

Prayer

WHEREFORE, PREMISES CONSIDERED, LESTER RAY GUY, Petitioner in the above styled and numbered cause respectfully prays that this Court grant this Petition for Discretionary Review, set this cause for oral argument so that this Court may grant any and all relief to which Petitioner is entitled.

Respectfully submitted,

ARIEL PAYAN Attorney at Law 1012 Rio Grande Austin, Texas 78701 Tel. 512/478-3900 Fax: 512/472-4102

by: /s/ Ariel Payan Ariel Payan State Bar No. 00794430

Attorney for Petitioner

Certificate of Delivery

This is to certify that a true and correct copy of the above and foregoing “Petition for Discretionary Review” was hand-delivered, mailed postage pre-paid or transmitted via telecopier (fax) to the office of the District Attorney of Travis County, Texas, and to the State Prosecuting Attorney’s Office.

/s Ariel Payan

Ariel Payan

12

Certificate of Compliance

I hereby certify pursuant to T.R.A.P. 9.4(i)(3), the word count for this document, as determined by the word processing program is 2279 .

/s/ Ariel Payan

Ariel Payan

APPENDIX

Guy v. State, Not Reported in S.W.3d (2014)

cause to charge appellant. In 2012, the case was tried to a jury, which found appellant guilty. The court 2014 WL 5423760

Only the Westlaw citation is currently available. sentenced appellant to life imprisonment, consecutive to the life sentence he is currently serving for an SEE TX R RAP RULE 47.2 FOR DESIGNATION unrelated offense. Guy appeals his conviction in nine AND SIGNING OF OPINIONS. issues. For the reasons that follow, we affirm his conviction and punishment.

MEMORANDUM OPINION

DO NOT PUBLISH

Court of Appeals of Texas, Austin.

Factual and Procedural Background Sixty-six-year-old Ivy was found dead in her apartment Lester Ray Guy, Appellant on September 15, 1978. At trial, the Travis County v. medical examiner testified that he performed an The State of Texas, Appellee autopsy on Ivy's body and determined that she had NO. 03–12–00466–CR | Filed: October 22, been raped and killed by asphyxiation, possibly by 2014 smothering with a pillow. The medical examiner also testified that he had taken two smears from Ivy's vagina and affixed them to laboratory slides for examination.1 He found sperm on the slides, shared his findings with the police department, and stored the slides in the FROM THE DISTRICT COURT OF TRAVIS medical examiner's offices. Evidence showed that COUNTY, 331ST JUDICIAL DISTRICT, NO. several items of physical evidence were also collected D– 1 – DC– 1 0 – 3 02548, HONORABLE DAV ID at the crime scene, including sheets from the bed where CRAIN, JUDGE PRESIDING Ivy was found.

Attorneys and Law Firms Although appellant's name surfaced during initial Ariel Payan, The Law Offices of Ariel Payan, Austin, investigation of the crime, no charges were filed against TX, for Appellant. him at the time, and the case went unsolved for many years. The vaginal slides remained in the medical M . Scott Taliaferro, Assistant District Attorney, examiner's offices, and the other physical evidence Austin, TX, for Appellee. remained in the Austin Police Department's evidence Before Justices Puryear, Pemberton, and Field storage room.2 In 2001, the case was assigned to Sergeant Scott Ehlert with the Austin Police Department's cold-case unit. Ehlert testified at trial that he obtained the vaginal slides from the medical examiner's office and submitted one of them (Vagina 1) to the Department of Public Safety (DPS) Crime Lab MEMORANDUM OPINION for DNA testing but that the results produced only a partial DNA profile for the sperm contributor insufficient to identify a suspect. Concerned about possible depletion of the samples, Ehlert testified that he decided not to seek further DNA testing at that David Puryear, Justice time.

*1 Lester Ray Guy appeals his conviction of capital murder for the 1978 rape and asphyxiation of an elderly In 2003, appellant agreed to meet with Ehlert to woman, Hazel Ivy. For over twenty years the crime discuss the case. At the time, appellant was went unsolved, but beginning in 2001 the Austin Police incarcerated at the Texas Department of Criminal Department's cold-case unit reopened the investigation, Justice (TDCJ) for an unrelated offense and was eventually subjecting stored biological evidence from transported to Austin for the meeting. After the Ivy's autopsy to DNA testing and finding probable meeting, Ehlert transported appellant back to TDCJ

© 2015 Thomson Reuters. No claim to original U.S. Government W orks. 1

Guy v. State, Not Reported in S.W.3d (2014)

custody and purchased him a fast-food meal on the electropherogram signals the presence of two different way. Appellant left his fast-food trash in Ehlert's car, alleles there, which is referred to as heterozygotic. If which Ehlert later collected and submitted to the DPS the individual received identical alleles from both his Crime Lab for DNA analysis. mother and father, that locus is referred to as homozygotic, and ordinarily the electropherogram would reflect only one peak at that locus. The *2 The DPS lab obtained a partial DNA profile from electropherogram measures peaks in “relative appellant's drinking straw and compared it with the fluorescence units” (RFUs), reflecting the presence of DNA profile from the Vagina 1 slide. From that particular alleles and the absence of others at each comparison, DPS witnesses testified that appellant studied locus. The height and location of the RFU peak could not be excluded as the contributor of the sperm indicates which alleles are present and at which loci, cells on the slide. However, the DPS analysis also and labs conducting DNA tests utilize “calling indicated that the “random match probability” 3 that an thresholds.” If an RFU peak is above the minimum individual other than appellant was the contributor was calling threshold, the lab “calls” that allele for the “only 1 in 75 for Caucasians, 1 in 94 for blacks, and 1 targeted locus and considers it a part of the DNA in 53 for Hispanics,” and the investigation was again profile it is generating. paused.

*3 Nasir testified that the mini-STR test analyzes eight Ehlert testified that in 2007 he learned of a new DNA of the fifteen loci that are analyzed in standard STR 7 test called “mini-STR” or “mini-Filer,” which he testing but that the technology for both tests is basically explained is more sensitive than a standard DNA test the same. She further testified that the mini-STR is because it can obtain DNA profiles from old, degraded commonly used for degraded DNA (where the DNA samples and very small amounts of genetic material. has broken down into smaller fragments) or for very The cold-case unit submitted the Vagina 2 slide to low quantities of DNA and is more sensitive than Orchid Cellmark, a private lab in Dallas that was regular STR testing because it can analyze smaller utilizing the new test. Orchid Cellmark's mini-STR test DNA fragments by using a different chemical returned a DNA profile for the sperm contributor and composition in the testing process. compared it to appellant's DNA profile, obtained from buccal (saliva) swabs.4 Orchid Cellmark employee Huma Nasir, one of the State's expert witnesses, Nasir explained that in analyzing an electropherogram, testified that the probability of an individual other than a DNA profile is created, identifying which alleles are appellant matching the Vagina 2 profile were 1–in–186 present at each of the targeted loci and that her lab's million African–Americans.5 Dr. Ranajit Chakraborty, electropherogram of the sperm in the Vagina 2 slide a statistical geneticist who developed some of the identified only one significant peak at what is referred technologies used in DNA testing, also testified as an to as the “FGA locus”—allele number 19.8 Various expert witness for the State. Dr. Chakraborty testified experts testified that individual locus results can that he reviewed Orchid Cellmark's mini-STR protocol sometimes be inconclusive. One reason they provided both generally and as applied in this case for accuracy is that with degraded or low-quantity DNA samples, and reliability and determined it to be sound. which was the case with the Vagina 2 slide, there is a possibility of “allelic dropout,” meaning that one of the two alleles present at a particular locus is not The most contentious issue at trial and on appeal registering on the electropherogram because of its involves Orchid Cellmark's interpretation of the degradation or low quantity. However, the various mini-STR results. The State's experts explained that experts explained that a single peak at any given locus DNA testing involves the generation of a graph known could also signify that the locus is homozygotic as an electropherogram, which maps “peaks” reflecting because, for instance, the individual received a “19” at the existence of particular DNA markers (called the locus from his mother and father, resulting in only “alleles” and each identified by a number) at particular one RFU peak on the electropherogram. locations (loci) in a DNA strand. In most cases, at any given locus there are two alleles (one contributed by the individual's mother and another by the individual's Nasir testified that with respect to the FGA locus, she father).6 Two distinct peaks at a particular locus on the could not definitively determine whether the single

© 2015 Thomson Reuters. No claim to original U.S. Government W orks. 2

Guy v. State, Not Reported in S.W.3d (2014)

RFU peak was due to allelic dropout or because the S.W.3d 772, 778 (Tex.Crim.App.2007). This standard allele at that locus was homozygotic. Because Nasir accounts for the factfinder's duty to resolve conflicts in could not conclusively make such a determination, and the testimony, to weigh the evidence, and to draw because of her experience and knowledge that allelic reasonable inferences from basic facts to ultimate facts. dropout commonly occurs in degraded and Clayton, 235 S.W.3d at 778. Our review of “all of the low-quantity DNA samples, she determined that evidence” includes evidence that was properly and appellant could not be excluded as the donor of the improperly admitted, and when the record supports sperm (because the FGA allele identified a “19,” and conflicting inferences, we presume that the factfinder appellant's profile at the FGA locus contains a “19” and resolved the conflicts in favor of the prosecution. Id. a “23”). Accordingly, Nasir did not include the FGA Direct and circumstantial evidence are treated equally, locus in her calculation of random match probability. and circumstantial evidence alone can be sufficient to She testified that because excluding the FGA locus establish guilt. Id. from her calculations resulted in fewer loci matching appellant to the Vagina 2 sperm DNA, her calculations were more “conservative” (i.e., more favorable to Appellant makes two main arguments challenging the appellant) than if she had included the FGA locus. Dr. sufficiency of the evidence to support the verdict: (1) Chakraborty testified that he reviewed Nasir's results the mini-STR test that Orchid Cellmark performed, and and concurred with her decision to exclude the FGA on which the State relied almost exclusively in locus. establishing appellant's guilt, was invalid because it used only seven loci to establish the sperm DNA profile and (2) the DNA test on the Vagina 1 slide originally *4 Dr. Chakraborty also testified that while Nasir's performed by DPS employee Gary Molina conclusively random match probability calculation was accurate, he excluded appellant as the perpetrator. was able to calculate an even more accurate probability because he had access to population data for one of the loci targeted by the mini-STR test to which Orchid With respect to the mini-STR test, various experts Cellmark did not. Using the additional population data, asserted that the test is effective, reliable, and widely Dr. Chakraborty testified that the probability that the used, especially in cases where DNA has degraded or sperm contributor was an African–American unrelated is of low quantity, despite the fact that it targets only to appellant were 1–in–2.2 billion. He testified that the eight of the fifteen loci targeted by the regular STR entire world population at the time of the homicide was test. Nasir and Dr. Chakraborty explained the only close to two billion. Dr. Chakraborty also phenomenon of allelic dropout and why use of only provided what he described as a “more conservative” seven of the eight targeted loci and exclusion of the probability calculation, due to the fact that in statistics, FGA locus in their statistical analyses was an when a particular DNA profile is in fact present in a appropriate and conservative approach in this case, certain population, there is a greater chance that where there were strong indicators that allelic dropout another individual will exhibit that same profile. Dr. had occurred. Dr. Chakraborty reviewed Orchid Chakraborty testified th at using this “more Cellmark's electropherograms, confirmed Nasir's conservative” approach, the odds of finding another interpretation of the results, and provided further African–American with the same seven-loci profile as statistical analysis. Dr. Chakraborty also explained that appellant were 1–in–1.08 billion. a homogzygotic FGA locus is unlikely in this case based on the relative peak heights of the other loci and because the chance of that locus being homozygotic is Issues on appeal only sixteen percent due to the many alleles possible Appellant first challenges the sufficiency of the there. evidence to support his conviction. When reviewing an evidentiary-sufficiency issue, we must consider all of the evidence in the light most favorable to the verdict Appellant's expert witness, Dr. Laurence Mueller, and then determine whether, based on that evidence testified that because there was no way to confirm that and reasonable inferences therefrom, any rational trier allelic dropout indeed occurred at the FGA locus, it of fact could have found the essential elements of the was possible that the locus was homozygotic, which crime beyond a reasonable doubt. See Jackson v. would have conclusively excluded appellant from being Virginia, 443 U.S. 307 (1979); Clayton v. State, 235 the sperm contributor. Dr. Mueller suggested that the

© 2015 Thomson Reuters. No claim to original U.S. Government W orks. 3

Guy v. State, Not Reported in S.W.3d (2014)

probability of allelic dropout occurring at the FGA loci, making it possible that other alleles (matching locus could be estimated and added into the appellant's) were present at the loci but simply not calculations performed by Dr. Chakraborty and Nasir, registering on the electropherograms.9 To the extent and he criticized their analyses for not so doing but, that Defense Exhibit 1 contradicts the testimony from rather, simply excluding the locus from their several other live witnesses, the jury was free to calculations. However, Dr. Mueller offered no disregard that evidence, and we may not supplant the alternative statistical analysis reflecting allelic-dropout jury's fact-finding role with respect to its weight. See probability for the mini-STR tests performed here, M o reno v. Sta t e , 7 5 5 S.W .2 d 866, 867 merely noting that some researchers in Europe had (Tex.Crim.App.1988) (it is not reviewing court's duty recently validated a study for a similar DNA test kit to disregard, realign, or weigh evidence). We hold that that provided “reasonably good” predictions of allelic the evidence was sufficient to support appellant's dropout rates while conceding that dropout probability conviction and, accordingly, overrule his first issue. rates for the mini-STR test were not readily available.

Appellant's second issue argues that the trial court *5 The jury was free to assign weight to these various erred in denying his motion to suppress evidence in the expert opinions, as issues of credibility and weight of form of the drinking straw that he left behind in the the evidence lie exclusively within the province of the police car. We review a trial court's ruling on a motion jury. See Brooks v. State, 323 S.W.3d 893, 911–13 to suppress evidence for abuse of discretion, viewing (Tex.Crim.App.2010) (direct-appeal courts are not the facts in the light most favorable to the trial court's permitted to act as “thirteenth juror”). We conclude decision. Shepherd v. State, 273 S.W.3d 681, 684 that the record contains sufficient evidence to support (Tex.Crim.App.2008). W e give “almost total appellant's conviction based on the mini-STR test and deference” to the trial court's express or implied its interpretation. determination of historical facts and review de novo its application of the law of search and seizure to those facts. Id.

With respect to DPS employee Molina's Vagina 1 DNA test, appellant cites evidence in the form of Defense Exhibit 1 (a table generated by Molina indicating which *6 Appellant argues that he had a legitimate alleles were present at each locus) identifying alleles at expectation of privacy in his DNA and that the State two loci (one of which was the FGA) that are violated this by seizing his fast-food trash without his inconsistent with appellant's DNA profile. However, consent. See Villarreal v. State, 935 S.W.2d 134, 138 neither appellant nor the State specifically questioned (Tex.Crim.App.1996) (en banc) (burden of establishing Molina about that exhibit and its alleged conclusiveness legitimate expectation of privacy rests on defendant). that appellant could not have been the perpetrator. However, the trial court could reasonably have found And, despite Defense Exhibit 1, Molina stated at least that appellant had no legitimate expectation of privacy twice in his testimony that appellant, in fact, could not in this instance because he was incarcerated at the time, be excluded as the contributor of the sperm found and prisoners have greatly diminished privacy rights inside the victim. Moreover, every other witness who and no legitimate expectation that their DNA will t e s t i fi e d a b o u t t h e v a r i o u s D N A t e s t s remain private. See Oles v. State, 993 S.W.2d 103, 108 performed—including appellant's own expert, Dr. (Tex.Crim.App.1999) (lowered expectation of privacy Mueller—similarly concluded that appellant could not exists in arrest and detainment situations); Pollard v. be excluded by virtue of any of the test results, State, 392 S.W.3d 785, 797 (Tex.App.—Waco 2012, including the original Molina test. pet. ref'd) (“[C]ollection of DNA from prisoners has been found to be reasonable in light of an inmate's diminished privacy rights, the minimal intrusion Furthermore, several witnesses (including Dr. Mueller) involved, and the legitimate government interest in provided an explanation of the alleged “two-loci using DNA to investigate crime.”); see also Tex. Gov't mismatch” between appellant's DNA and the DNA Code § 411.148 (specifically authorizing collection of recovered from the Vagina 1 slide that the jury could DNA from prisoners); Velasquez v. Woods, 329 F.3d have found credible: because the quantity of biological 420, 421 (5th Cir.2003) (collection of DNA samples material tested was both very small and very old and from felons does not violate Fourth Amendment). Not degraded, there was likely “allelic dropout” at those only was appellant incarcerated and therefore lawfully

© 2015 Thomson Reuters. No claim to original U.S. Government W orks. 4

Guy v. State, Not Reported in S.W.3d (2014)

in police custody at all relevant times, but also there The appellate court applies an abuse-of-discretion was no physical intrusion involved in obtaining standard of review for the factual components of a appellant's DNA from the fast-food trash. ruling on a speedy-trial motion and a de novo standard of review for the legal components. Id. at 282. Review of the individual Barker factors necessarily involves The trial court could also have reasonably concluded fact determinations and legal conclusions, but the that appellant abandoned the trash and thereby had no balancing test as a whole is purely a legal question. Id. legitimate expectation of privacy therein. See Comer v. The appellate court must uphold the trial court's ruling State, 754 S.W.2d 656, 659 (Tex.Crim.App.1986) (en if it is supported by the record and is correct under the banc) (op. on reh'g) (defendant must intend to abandon applicable law. Shaw, 117 S.W.3d at 889. property and must freely decide to abandon it, and decision to abandon must not merely be direct result of police misconduct); Hawkins v. State, 758 S.W.2d 255, *7 The first factor, length of delay, is measured from 257 (Tex.Crim.App.1988) (general rule is that when the time the defendant is arrested or formally accused, police take possession of abandoned property, there is and delay approaching one year is sufficient to trigger no seizure under Fourth Amendment); Pollard, 392 a speedy-trial inquiry. Id. Here, a probable cause S.W.3d at 797–98 (where defendant left spoon and cup affidavit was issued for appellant's arrest on December behind in detox cell, he did not demonstrate genuine 13, 2010, and the trial began on May 29, 2012, an intention to keep DNA private and therefore interval of almost eighteen months. This delay meets abandoned it).1 0 The trial court did not abuse its the “presumptively prejudicial” threshold and therefore discretion in denying appellant's motion to suppress, triggers inquiry into the three other factors. See id. This and we overrule his second issue. factor itself also weighs slightly in favor of appellant because the delay stretches somewhat beyond the minimum of about a year needed to trigger judicial In his third issue, appellant argues that the trial court examination of the claim. See id. erred in denying his speedy-trial motion. The right to a “speedy” trial attaches once a person is arrested or charged with an offense, and motions challenging an With respect to the reason for the delay, a neutral infringement of this right are analyzed under the Barker reason such as overcrowded courts or negligence test, which is a balancing test in which the conduct of should not be given significant weight against the both the State and the defendant are weighed and government, and a valid reason should not be weighed which must first be triggered by a delay that is against the government at all.State v. Munoz, 991 unreasonable enough to be “presumptively prejudicial.” S.W.2d 818, 822 (Tex.Crim.App.1999). At the hearing See Barker v. Wingo, 407 U.S. 514, 530–31 (1972); on appellant's motion, the State asserted that the delay Cantu v. S ta te, 253 S.W.3d 273, 280–81 was due to a crowded docket in Travis County and to (Tex.Crim.App.2008). The four main factors the challenges of prosecuting an offense that occurred considered in determining whether a speedy-trial in the distant past. There was no evidence of deliberate violation has occurred are: (1) the length of delay, (2) attempts by the State to delay the trial. We conclude the reason for the delay, (3) the defendant's assertion of that this factor at most weighs slightly in favor of his right to a speedy trial, and (4) prejudice to the appellant. defendant resulting from the delay. See Shaw v. State, 117 S.W.3d 883, 888–89 (Tex.Crim.App.2003). If the right has been violated, the remedy is dismissal of the Regarding the third factor, the defendant's assertion of charging instrument with prejudice; because this is a his right to a speedy trial, appellant made no attempt to radical remedy, “courts must apply the Barker assert that right until he filed his motion to dismiss on balancing test with common sense and sensitivity to December 20, 2011, over a year after he was charged. ensure that charges are dismissed only when the The trial began in May 2012, and appellant did not seek evidence shows that a defendant's actual and asserted a hearing on his motion until the first pretrial hearing in interest in a speedy trial has been infringed.” Cantu, April 2012, over three months after he filed it. Such 253 S.W.3d at 281. delays in asserting a right to a speedy trial “make[ ] it difficult for a defendant to prevail on a speedy trial claim.” Shaw, 117 S.W.3d at 890. “This is so because a defendant's failure to make a timely demand for a

© 2015 Thomson Reuters. No claim to original U.S. Government W orks. 5

Guy v. State, Not Reported in S.W.3d (2014)

speedy trial indicates strongly that he did not really psychiatrist to assist defendant with insanity defense). want one and that he was not prejudiced by not having Without this additional demographic information, one.” Id. This factor weighs moderately to heavily in appellant complains, his counsel was unable to the State's favor. adequately prepare to question the venire members and run criminal background checks on them. The trial court overruled appellant's objection to this Finally, the fourth factor— prejudice to the discrepancy after determining that he failed to defendant—does not weigh in appellant's favor at all demonstrate any harm. and is, at best, neutral. The prejudice must be assessed in light of the interests that the speedy-trial right is designed to protect: (1) preventing oppressive pretrial *8 Appellant argues that the questionnaire discrepancy incarceration, (2) minimizing anxiety and concern of constitutes a constitutional error, see Tex.R.App. P. the accused, and (3) limiting the possibility that the 44.2(a), but he cites no authority supporting such defense will be impaired, with this last subfactor being contention. We conclude that the error, if any, was not the most serious. Id. Here, appellant was not constitutional and is subject to review only for error prejudiced with respect to the first interest, as he was affecting a substantial right. See id. (b) (we must already in prison for an unrelated offense at all relevant disregard any error not affecting a substantial right). times. He also offered no evidence that the delay We conclude so for two reasons. caused him any unusual anxiety or concern beyond the level normally associated with being charged with a felony sexual crime. Id. Finally, appellant offered no First, regarding the undisclosed home addresses of the evidence that his ability to defend himself was venire members, appellant could simply have asked the adversely affected by the approximate eighteen-month members during voir dire to provide their addresses or delay. otherwise identify the particular part of town in which they resided, to the extent that he truly deemed the information relevant or crucial to the informed exercise Weighing all four of these factors together, we hold of his peremptory strikes. See Gonzales v. State, 3 that their balanced weight is against finding a violation S.W.3d 915, 917 (Tex.Crim.App.1999) (jury of appellant's right to a speedy trial and that the trial questionnaires do not relieve counsel of duty to elicit court did not err in denying his motion to dismiss the pertinent information during voir dire); Murphy v. indictment. We overrule appellant's third issue. State, 229 S.W.3d 334, 338 (Tex.App.—Amarillo 2006, pet. ref'd) (purpose of juror questionnaires is to save time by providing basic information that would Appellant next alleges that he was denied his otherwise be obtained by oral questions). “ ‘Diligent constitutional right to “due process” when, prior to counsel’ will not rely on written questionnaires to voir dire, the district clerk provided the State with juror supply any information that counsel deems material.” questionnaires that contained greater demographic Gonzales, 3 S.W.3d at 917. Although appellant information than those provided to defense counsel. emphasizes the importance of the demographic Specifically, the State received venire members' full information revealed by the venire members' home residential addresses, while appellant received only addresses, “it was apparently not important enough to their zip codes. Also, the State received venire seek the same information” by asking the venire members' social security numbers and dates of birth, members directly for it. Murphy, 229 S.W.3d at 338. while appellant received only their ages. Appellant Moreover, the record shows that defense counsel was discovered this questionnaire discrepancy at the hearing not denied the opportunity to inquire of the venire on during which the parties and the Court discussed any matter that would have been included in a written venire-member strikes and jury composition. He argues questionnaire or that he was limited in the amount of that the discrepancy gave the State an “unfair time permitted to conduct voir dire. The fact that the advantage” during voir dire and violated his right to State had access to the venire members' addresses prior due process, which requires a “reasonably level playing to voir dire did not excuse appellant from his duty to field” between the defense and prosecution at trial. See elicit that same information if he truly deemed it De Freece v. State, 848 S.W.2d 150, 159 material. (Tex.Crim.App.1993) (en banc) (applying principle of “level playing field” to appointment of neutral

© 2015 Thomson Reuters. No claim to original U.S. Government W orks. 6

Guy v. State, Not Reported in S.W.3d (2014)

Secondly, as to appellant's alleged inability to run J o h n so n v . State, 6 8 S .W .3 d 6 4 4 , 6 4 9 criminal background checks because he was not (Tex.Crim.App.2002). With respect to both struck provided venire members' social security numbers and jurors, Numbers 18 and 19, the record demonstrates dates of birth, the State did run background checks and that the State provided the court with a credible, offered to provide appellant such information, as well race-neutral explanation: the jurors had stated on their as the other missing data, at the hearing when appellant questionnaires that they had never been accused of a first learned about and objected to the questionnaire crime, but in the course of the State's questioning them discrepancy. However, appellant did not accept the in voir dire, it turned out that the two jurors had not State's offer to view the information or otherwise answered those questions truthfully. The State struck pursue the matter, such as seeking additional voir dire a third, non-African-American juror for this very same time. Furthermore, appellant has not established that he reason. The trial court found the State's reason for would have exercised any particular peremptory striking the jurors to be non-discriminatory, and we challenge differently if the personal information had find such ruling supported by the record and not clearly been disclosed to him earlier or that he was otherwise, erroneous. Furthermore, appellant did not meet his in fact, harmed. burden on the third step—to prove that the State's race-neutral explanation was incorrect or that it was a pretext for discrimination. Id. at 650. We overrule On this record, we hold that the trial court did not err appellant's fifth issue. in determining that the questionnaire discrepancies did not unfairly “tip” the playing field in the State's favor and that any error attributable to the trial court In his sixth issue, appellant argues that local law resulting from the discrepancy did not affect appellant's enforcement destroyed physical evidence prior to trial substantial rights. Accordingly, we overrule appellant's that would have exonerated him. Specifically, he fourth issue. complains about various items, including bed sheets and hairs, that had gone missing in the decades since the offense. Appellant asserts that the State “acted in Appellant asserts in his fifth issue that the trial court bad faith” by destroying the evidence or failing to improperly denied his Batson challenge to the State's “track down or even try to locate” the last person in peremptory strikes of two African–American jurors. charge of it. The State responds that appellant failed to See Batson v. Kentucky, 476 U.S. 79, 89 (1986) preserve this issue and that, in any case, he has failed to (race-based jury strikes deny defendant right to establish that the police acted with bad faith in relation judgment by one's peers). A Batson challenge to a to the missing evidence. We agree. peremptory strike consists of three steps: (1) the opponent of the strike must establish a prima-facie showing of racial discrimination, (2) the proponent of Appellant did not seek dismissal of the indictment on the strike must articulate a race-neutral explanation, due-process grounds or otherwise object or present and (3) the trial court must decide whether the party this issue to the trial court and obtain an adverse ruling. opposing the strike has proved purposeful racial He has, therefore, waived the issue and cannot properly discrimination. Grant v. State, 325 S.W.3d 655, 657 raise it for the first time on appeal. See Tex.R.App. P. (Tex.Crim.App.2010). In reviewing a trial court's 33.1(a); Yazdchi v. State, 428 S.W.3d 831, 844 ruling on a Batson challenge, the appellate court must (Tex.Crim.App.2014) (failure to object may waive review the record in the light most favorable to the trial even constitutional errors). However, even if appellant court's ruling and not disturb the ruling unless it is had not waived this issue, we would overrule it because clearly erroneous. Young v. State, 283 S.W.3d 854, there was no evidence that the missing evidence (which 866 (Tex.Crim.App.2009). Such a ruling is not clearly was never subjected to forensic testing) would have erroneous if it is supported by the record. Vargas v. been exculpatory or that law enforcement acted in bad State, 838 S.W.2d 552, 554 (Tex.Crim.App.1992) (en faith. See Arizona v. Youngblood, 488 U.S. 51, 56 banc). (1988) (for evidentiary material “of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the *9 Because the State offered its reasons for the strikes, defendant,” failure to preserve such potentially useful the prima-facie-case inquiry is moot, and we move on evidence does not constitute denial of due process to whether the reasons offered are in fact race-neutral. unless criminal defendant can show bad faith on part of

© 2015 Thomson Reuters. No claim to original U.S. Government W orks. 7

Guy v. State, Not Reported in S.W.3d (2014)

police); Ex parte Napper, 322 S.W.3d 202, 230 (Tex.Crim.App.2010) (same). Accordingly, we overrule appellant's sixth issue. The Texas Court of Criminal Appeals has held that the phrase “to converse with a juror” in article 36.22 does not encompass statements made to jurors to which the Appellant next argues that the trial court erred in juror does not respond. See Palasota v. State, 460 overruling his motion for mistrial, which he filed after S.W.2d 137, 141 (Tex.Crim.App.1970) (because juror learning that two jurors were present in an elevator did not respond to remarks of unidentified woman when an attorney unconnected to this case asked asking how jurors could “sleep at night” and that appellant's attorney how many “priors” appellant had, “damned jury ought to be shot between the eyes,” such allegedly in violation of article 36.22 of the Code of remarks did not constitute “conversation” under article Criminal Procedure. See Tex.Code Crim. Proc. art. 36.22); see Badgett v. State, No. 04–07–00364–CR, 36.22 (“No person shall be permitted to converse with 2009 WL 142324, at *11 (Tex.App.—San Antonio a juror about the case on trial except in the presence Jan. 21, 2009, pet. ref'd) (mem.op.) (because juror did and by the permission of the court.”). This elevator not respond to statement made by unidentified man interaction was immediately brought to the attention of who told juror that deceased victim had been “real nice the trial court, which conducted a hearing outside the young man,” no “conversation” had occurred). presence of the jury before the trial resumed. At the Similarly, we conclude that the one unresponded-to hearing, one of the two jurors indicated that he had not question about how many “priors” appellant had did heard any of the above-referenced interaction. The not constitute “conversation” under article 36.22, and other juror stated that immediately upon hearing the there is no presumption of harm. question, he blocked his ears with his hands and turned away from the person speaking. He also indicated that he had not communicated any of this information to However, even if the elevator communication could be any of the other jurors and that the elevator interaction considered a “conversation” under article 36.22, the would not affect his ability to make a fair and impartial trial court could reasonably have determined that any decision. The judge instructed both jurors to disregard presumption of harm was rebutted by the jurors' what, if anything, they heard in the elevator and to not statements that they could be impartial and disregard repeat it to any other juror, and both jurors indicated the remark, especially in conjunction with the court's that they would be able to follow these instructions. instruction to disregard the comment and not Appellant then filed a motion for mistrial, which the communicate it to other jurors, which we must trial court denied. presume the jurors followed. See Waldo v. State, 746 S.W.2d 750, 752–53 (Tex.Crim.App.1988); see also Wesbrook v. State, 29 S.W .3d 103, 115 *10 Mistrial is appropriate for only “highly prejudicial (Tex.Crim.App.2000) (in most instances, trial court's and incurable errors,” and a trial court's denial of a instruction to disregard cures error). The alleged error motio n for m istrial is reviewed under an here was not “highly prejudicial and incurable,” and we abuse-of-discretion standard. Simpson v. State, 119 hold that the trial court's denial of appellant's motion S.W.3d 262, 272 (Tex.Crim.App.2003). Because the for mistrial was within the zone of reasonable primary goal of article 36.22 is to insulate jurors from disagreement. We overrule appellant's seventh issue. outside influence, if a violation is shown, the effectiveness of possible remedies will be determined in part by whether the conversation influenced the juror. Lastly, appellant complains about the trial court's O con v. State, 2 8 4 S.W .3 d 8 8 0 , 8 8 4 admission of expert testimony from Dr. Chakraborty (Tex.Crim.App.2009). A violation of article 36.22, and Nasir. Prior to admission of the expert testimony, once proven by the defendant, triggers a rebuttable the trial court held a Daubert hearing, the transcript of presumption of injury to the accused, and a mistrial which is in the appellate record. Before admitting may be warranted. Id. When determining whether the expert testimony, the trial court must be satisfied that State sufficiently rebutted the presumption of harm, we three conditions are met: (1) the witness qualifies as an view the evidence in the light most favorable to the trial expert by reason of her knowledge, skill, experience, court's ruling and defer to the trial court's resolution of training, or education (“qualification”); (2) the subject historical facts and its determinations concerning matter of the testimony is an appropriate one for expert credibility and demeanor. Id. testimony (“reliability”); and (3) admitting the expert

© 2015 Thomson Reuters. No claim to original U.S. Government W orks. 8

Guy v. State, Not Reported in S.W.3d (2014)

testimony will actually assist the factfinder in deciding national DNA advisory board. Finding that the the case (“relevance”). Davis v. State, 329 S.W.3d 798, validations were acceptable, both outside agencies 813 (Tex.Crim.App.2010); see also Tex.R. Evid. 702. accredited Orchid Cellmark with respect to its Appellant challenges the second condition, reliability, mini-STR protocols. of the expert testimony. Three criteria must be met to show reliability of scientific evidence: (1) the underlying theory is valid, (2) the technique applying And finally, regarding appellant's complaint that Orchid said theory is valid, and (3) the technique was properly Cellmark had failed to complete a stochastic threshold applied on the occasion in question. Bigon v. State, 252 study1 1 prior to testing the samples at issue here, we S.W.3d 360, 367 (Tex.Crim.App.2008). A trial court's conclude that Nasir provided sufficient testimony ruling on the admissibility of expert testimony is explaining how such a study was not necessary for reviewed for abuse of discretion, and that ruling must appropriate use of the mini-STR and application of the be upheld if it is within the zone of reasonable allelic dropout theory or for reliability of the test disagreement. Id. results. She explained that the use of a stochastic threshold “is not a DNA advisory board requirement for a validation” and that her decision to exclude the *11 Regarding Nasir, appellant asserts that her FGA locus was, in fact, a conservative decision due to testimony is unreliable because: (1) Orchid Cellmark the possibility of allelic dropout, which is a common uses less than the manufacturer-recommended amount phenomenon with degraded and very small quantities of genetic material in performing the mini-STR test; (2) of DNA and with the design of the mini-STR test kit in the validation studies Orchid Cellmark completed were particular. We conclude that the foregoing provided a not peer reviewed; and (3) Orchid Cellmark had not reasonable basis for the trial court to conclude that completed a “stochastic threshold” study for allelic Nasir's expert testimony was reliable. dropout and, therefore, Nasir's theory about allelic dropout was invalid and improperly applied on this occasion. Appellant raises the very same issues about reliability concerning Dr. Chakraborty's testimony, specifically complaining about his reliance on the Orchid Cellmark With respect to appellant's contention about the tests in preparing his statistical analysis. Because manufacturer's recommended sample size, Nasir appellant raises no issues specific to Dr. Chakraborty testified at the Daubert hearing that although the that differ from those he raises with respect to Nasir mini-STR manufacturer identifies an optimum range for and Orchid Cellmark's use of the mini-STR test, we sample size, Orchid Cellmark had performed its own need not address this issue separately.1 2 Accordingly, internal validation and sensitivity studies in 2008 to we overrule appellant's eighth and ninth issues and hold determine the smallest sample sizes from which they that the trial court did not abuse its discretion in were able to obtain full DNA profiles. The sample size admitting the expert testimony of Nasir and Dr. used in this case was consistent with the sample sizes Chakraborty. used in the validation studies. Nasir further explained that the manufacturer's recommendation was based on what is known as a “full volume reaction,” but Orchid Cellmark had internally validated use of the mini-STR CONCLUSION kit using a “half volume reaction,” making its similar application of the mini-STR in this case appropriate *12 For the foregoing reasons, we overrule each of and reliable. appellant's issues and affirm the trial court's judgment of conviction and punishment.

Nasir addressed the lack of outside peer review by explaining that in the industry, independent labs cannot publish validation studies because the information is proprietary. However, she further explained that Orchid Cellmark's internal validation studies were independently reviewed by two different agencies that ensured the lab is following the guidelines of the

© 2015 Thomson Reuters. No claim to original U.S. Government W orks. 9

Guy v. State, Not Reported in S.W.3d (2014)

Footnotes

1 The two vaginal slides are referenced herein (and in the record) as Vagina 1 and Vagina 2. The examiner also took samples from Ivy's anus, throat, and mouth, but those samples are not relevant to the issues on appeal because they were not subjected to DNA testing.

2 Sometime before 2001, all of the physical evidence except the medical examiner's slides—including sheets, pillows, and Ivy's clothing—went missing and has never been recovered. There is no definitive explanation in the record for its disappearance.

3 In DNA analysis, random match probability calculates the likelihood of selecting a random person unrelated to the suspect who could be the source of the DNA profile in an evidence sample.

4 The trial court did not permit the jury to hear evidence about how or why buccal swabs were obtained from appellant for the purpose of comparing them to the Vagina 2 profile. The record contains a pretrial exhibit of the State, which was not admitted at trial, in the form of a search warrant issued to obtain buccal swabs from appellant after the Orchid Cellmark Vagina 2 profile was run through the DPS CODIS database and identified a “hit” in the person of appellant.

5 Appellant is African–American.

6 Experts testified that in some circumstances, there can be more than two alleles at a particular locus, for example if the DNA sample is a mixture of more than one person's DNA or in uncommon situations where an individual has received more than one allele from a parent at a particular locus, which phenomenon is not expected to occur at more than a handful of loci for any given individual.

7 STR stands for “short tandem repeat” and corresponds to the particular number assigned to an allele. A “19” at a particular locus, for example, means that there are nineteen repeats of a tandem pair found at that locus (tandem pairs are either adenosine and thymine or guanine and cytosine). State witnesses explained that although well over 99% of human DNA is common to all humans, each individual's entire DNA profile is unique. STR and mini-STR testing specifically target some of the very fragments of DNA that differ among individuals: the loci wherein the number of short tandem repeats vary. When compiling databases for the purpose of computing random match probability, scientists determine how many persons within a given known sample have the various combinations of tandem repeats at each studied locus and assign a probability for each allelic combination to the larger Caucasian, African–American, and Hispanic populations.

8 The record does not explain the acronym “FGA” or identify what genetic trait correlates with the FGA locus.

9 None of the electropherograms were admitted into evidence, and Molina's table (Defense Exhibit 1) was a summary of his interpretation of the Vagina 1 sperm electropherogram. Another DPS witness, Kimberly Clement, also analyzed the Vagina 1 sperm electropherogram and generated a different table, interpreting the results differently and noting that the alleles at the two challenged loci included some unknown or “inconclusive” alleles and that, therefore, appellant could not be excluded as the contributor.

10 We reject appellant's argument that he did not “freely” decide to abandon the trash by virtue of the officers' premeditated decision to obtain his DNA from the fast-food meal. Appellant's actions in abandoning his trash were not the direct result of police misconduct as contemplated by Comer and its progeny. See Comer v. State, 754 S.W.2d 656, 659 (Tex.Crim.App.1988) (en banc) (op. on reh'g) (defendant's discarding contraband was direct result of unlawful search of vehicle).

11 Nasir explained that a “stochastic threshold” can be used to determine whether a particular locus is homozygotic.

Although at the time of trial Orchid Cellmark had not yet completed its study to establish the threshold RFU above which the lab can confidently conclude that the alleles at a particular locus are homozygotic, she did testify that at Orchid Cellmark's current progress in the study, the lab was considering placing the threshold at no less than 400 RFUs but likely closer to 600 RFUs. The FGA peak for the Vagina 2 slide was 357 RFUs.

© 2015 Thomson Reuters. No claim to original U.S. Government W orks. 10

Guy v. State, Not Reported in S.W.3d (2014)

12 We note that the trial court had already conducted its Daubert hearing of Nasir and ruled that her testimony was admissible before it conducted its Daubert hearing of Dr. Chakraborty. See Somers v. State, 368 S.W.3d 528, 536 (Tex.Crim.App.2012) (validity of underlying scientific theory and validity of technique applying that theory can be determined through judicial notice).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government W orks.

© 2015 Thomson Reuters. No claim to original U.S. Government W orks. 11