## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. PD-1079-19 WILBER ULISES MOLINA, Appellant

v. THE STATE OF TEXAS ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST DISTRICT COURT OF APPEALS

HARRIS COUNTY H E R V E Y , J., delivered the opinion of the unanim o us Court . O P I N I O N This case presents the question of whether the adm ission of expert testim ony

about a DNA-com

parison analy sis violates the Conf rontation Clause when the analy sis is based
on com p uter-generated data f

r om the expert’s laboratory

and data f

rom another laboratory . W e agree with the court of appeals that it does not, and we will af f irm its judgm ent. FACTSMolina –2 a. The Offense On February

27, 2000, the victim

and f our of her f r iends traveled f

r om P ort Arthur to Houston to go to the rodeo. They checked into their hotel around 10:00 p.m . and decided to ride around the Richm ond/W estheim er area, which the victim described as a “drag” that people would “drive up and down.” The group drove around until about 2:30
a.m ., at which point they

stopped at a 24-hour diner called Mam a ’s Caf é so som e of

them could go to the restroom

bef ore going back to the hotel. When the victim returned and started to get into her car, a m an in a hooded sweatshirt approached her and asked f or a cigarette. Bef

ore she could respond that she did not sm oke, the m an told her, “Let m e have y our car,” and she f elt som ething pushing against her side. It was a gun. The m an pushed her into the car and across the center console into the passenger seat. Af t er a second m an entered the car and sat down in the backseat, the f irst m an drove the car away . While they

were driving, the victim w as f orced into the backseat, and the m an in the backseat sexually assaulted her. The victim t estif ied that the two people who kidnapped her m et up with two m ore people, and three of them sexually assaulted her at gun point while she was blindf olded. Eventually

they stopped and drove away , leaving her in an em

pty f ield. The victim walked to a nearby business and asked som eone to call the police. Wh en police arrived, they took her to the hospital where a nurse perf orm ed an
exam ination, collected sam p les, and took the victim ’s clothes. The evidence was outsourced to Reliagene f or genetic testing, and the DNA prof ileMolina –3

it developed was entered into CODIS, but police were not able to identif y a suspect until 2017 when Appellant voluntarily gave a cheek swab to the Houston Police Departm ent. Appellant was subsequently indicted f

or aggravated sexual assault and convicted based on a DNA analy st’s testim ony that the prof

ile developed f

rom the victim ’s clothing by Reliagene was probably

Appellant’s because the chances that a random person other than Appellant was the contributor were in the trillions and quadrillions. b. Forensic Evidence The sexual assault nurse exam iner (SANE) collected sam ples during the
exam ination: a ref

erence blood sam

ple, a pulled head and pulled pubic hair, a loose head hair, vaginal swab(s) and sm ear(s), 1 right and lef t-hand f ingernail scrapings, two cuttings f rom an undergarm e nt, a nasal sam ple, oral swab(s) and sm ear(s), 2 and two item s of “loose evidence collection.” W hen the SANE kit was sent f or testing in 2003, the biological section of

the Houston Police Departm ent Crim e Lab was closed due to quality control issues, so the SANE kit was outsourced to a private-sector laboratory called Reliagene. In processing the evidence, analy sts at Reliagene were able to obtain epithelial-cell and sperm -cell f ractions f rom the vaginal swab(s) and two undergarm ent cuttings. From

those, they were able to develop two DNA prof iles. The prof

ile developed f rom the epithelial-cell f

raction f ound on the vaginal swab(s) was consistent with the

1 The report is not clear about how many vag inal and oral swabs and smears were in the SANE kit.

2 See supra , note 1.Molina –4

victim ’s known prof

i le, but the other prof

ile was f rom an unknown donor. A suspect had not y e t been identif

ied. Thirteen y e ars later, Appellant agreed to give a buccal swab f or testing. That swab was sent to the Houston Forensic Science Center and processed by Lloy d Halsell, III. Halsell com

pared the DNA prof

ile he generated f

rom the buccal swab to the DNA prof ile developed by

Reliagene. His analy sis showed that the sperm -cell f raction on the vaginal swab(s) was unsuitable f

or com parison due to insuf

f icient data, but the f

ollowing inf orm ation was obtained, which overwhelm ingly i ndicates that the unknown prof ile developed by

the Reliagene analy sts was probably Appellant’s:
Item Tested Results Epithelial-cell fraction from underg a

rment cutting #1 The probability that a randomly

chosen unrelated individual would be included as a possible contributor to this partial DNA profile is approx imately ,

• 1 in 170 trillion for Caucasians,

• 1 in 20 quadrillion for African Americans,

• 1 in 26 trillion for Hispanics, and

• 1 in 1.2 quadrillion for Asians Epithelial-cell fraction from underg a

rment cutting #2 The probability that a randomly

chosen unrelated individual would be included as a possible contributor to the major component is approx imately

• 1 in 38 quadrillion for Caucasians,

• 1 in 3.8 quintillion for African Americans,

• 1 in 3.9 quadrillion for Hispanics, and

• 1 in 100 quadrillion for AsiansMolina –5

Sperm-cell fractions from both underg arment cutting s The probability that a randomly

chosen unrelated individual would be included as a possible contributor to this DNA profile is approx imately

• 1 in 38 quadrillion for Caucasians,

• 1 in 3.8 quintillion for African Americans,

• 1 in 3.9 quadrillion for Hispanics, and

• 1 in 100 quadrillion for Asians c. Trial The State called Halsell to testif y , but the def

e nse objected and argued that Halsell
was m erely

a surrogate f

or testim onial statem ents included in the Reliagene report. In response, the trial judge allowed the parties to question Halsell outside the presence of the jury , af ter which she ruled that Halsell could testif y about his own analy sis and conclusions. During the evidentiary hearing, Halsell testif

ied that evidence m

ust be processed bef

ore a DNA prof

ile can be developed and that processing evidence involves f inding areas of

interest on the evidence, conducting presum ptive tests to f

ind out if genetic m aterial is present, extracting the m aterial, and am plif ying the pertinent genetic
m arkers. He also testif

ied that his laboratory uses various controls to ensure the reliability of the data generated in his laboratory . For exam ple, his laboratory uses a reagent blank to ensure that the chem icals used to process the evidence are not tainted with DNA. He said that it also uses a known sam p le during the am

p lif ication step to ensure that the genetic
m arkers were properly

am plif i ed. Halsell testif

ied that both techniques were used to verif y the data f rom Reliagene. He also testif ied that, if

there was an error in processing the evidence, he would not expect a useable prof ile to be developed and that anotherMolina –6

person’s prof

ile would not be m istakenly generated. Using Reliagene’s
com puter-generated data, Halsell said that he was able to independently verif y the prof ile developed by

Reliagene, then com

pare that prof

ile against the one he developed f rom Appellant’s buccal swab. In ruling that Halsell could testif y but that the Reliagene report was inadm issible, 3 the judge considered our decisions in Burch v. State , 401 S.W .3d 634 (Tex. Crim . App. 2013) and Paredes v. State , 462 S.W .3d 510 (Tex. Crim . App. 2015). PROCEDURAL HISTORY Appellant was indicted f

or and convicted of

aggravated sexual assault. He was sentenced to 55 y ears’ conf inem ent. A split panel of

the First District Court of Appeals af f irm ed his conviction. Molina v. State , 587 S.W .3d 100 (Tex. App.—Houston [ 1st Dist.] 2019). Appellant f

iled a petition f

or discretionary r eview, which we granted, asking whether the court of

appeals’s opinion conf

l icts with our decision in Burch , 401 S.W .3d at 634. CONFRONTATION CLAUSE The Conf rontation Clause of

the Sixth Am e n dm ent guarantees the accused the right to conf

ront the witnesses against him . U.S. C O N S T . am end. VI; Crawford v. W ashington , 541 U.S. 36, 42 (2004); Paredes , 462 S.W .3d at 514. The Conf rontation Clause applies to in-court testim ony as well as out-of

-court testim onial statem e nts. Testim onial statem ents are those “that were m ade under circum stances which would lead

3 The report was included in the record for appellate purposes and was not admitted at trial.Molina –7

an objective witness reasonably to believe that the statem ent would be available f or use at a later trial.” This includes som e f orensic analy ses. Paredes , 462 S.W .3d at 514 (citing Crawford , 541 U.S. at 52).
a. B urch In Burch v. State , 401 S.W .3d at 635, Burch and a com panion were arrested by

a police of f icer who saw them

in possession of

drugs and drug paraphernalia. Burch was indicted f or possession of cocaine with intent to deliver. At trial, the State sought to introduce a one-page laboratory report asserting that Burch was in possession of cocaine. The report was signed by the analy st who perf

o rm ed the testing as well as her supervisor. The State called the supervisor to testif y but not the analy st who perf orm ed the analy sis because that analy st no longer worked f or the laboratory . The supervisor testif ied that she “basically double-checked every

thing that was done,” but there was no evidence that she participated in the testing or observed it, and she could not conf irm that the non-testif

y ing analy st reached the correct result—that the sam ple seized f

rom Burch was cocaine. Burch objected on Conf

rontation Clause grounds. The trial court overruled his objection and adm itted the report, the phy sical evidence, and the supervisor’s testim o ny that the substance was cocaine. W e concluded that Burch was entitled to conf ront the non-testif y ing analy st because her report contained testim onial statem ents (that Burch was in possession of

cocaine of

a particular am ount), and the supervisor was only a surrogate witness f or the non-testif

ying analy st.Molina –8 b. P aredes In Paredes , 462 S.W .3d at 99, this Court revisited the question of how the Conf r ontation Clause applies to f orensic reports. In that case, Paredes and other gang
m em bers broke into an apartm ent to steal m oney an d drugs. During the robbery , two occupants were shot and killed. Af ter Paredes and the other gang m em bers lef t, Paredes gave another gang m em

ber the shirt that he had been wearing, which had blood on it, and asked her to wash it. Instead of washing it, the other gang m em b er notif ied the police, who seized the shirt. The shirt was subsequently sent to a f

orensic laboratory c a lled Identigene f

or DNA testing. Identigene used an assem bly -line batch process to “generate [ the] raw DNA data.” The State called the director of Identigene to testif

y but not the three analy sts who generated the raw DNA data. Paredes objected and argued that he was entitled to conf

ront the three non-testif

ying analy sts and that the director’s proposed testim o ny that the blood on Paredes’s shirt likely cam e f rom one of the victim s would violate the Conf

rontation Clause because she was only a surrogate f

o r the three non-testif y ing analy sts. The trial court overruled his objection and allowed the director to testif y . The com

puter-generated DNA data was not adm itted into evidence. Paredes was subsequently

convicted of capital m

urder. W e held that there was no Conf rontation Clause violation, reasoning that the DNA prof ile developed by

the non-testif

ying analy sts was not testim onial because the
com puter-generated data stood f or nothing without f

urther analy sis and that the directorMolina –9

was m ore than just a surrogate because she “perf o rm e d the crucial analy sis determ ining the DNA m a tch and testif ied to her own conclusions.” W e also noted that the reports the director relied on were not of f ered into evidence and that the sam e potential hum an-error problem s present in Burch were not at play in Paredes because the director could verif y that her conclusions were properly generated. W e f

urther noted that the director also “testif ied about the saf

ety m easures in place at Identigene to detect . . . errors” and that no prof ile would be generated “if part of the analy sis were done im properly . . . .” C OURT OF APPEALS a. The Majority The court of

appeals concluded that Paredes and its decision in Garrett controlled. Garrett v. State , 518 S.W .3d 546, 547 (Tex. App.—Houston [ 1st Dist.] 2017, pet. ref’d). In Garrett , the State’s DNA expert, who worked at the Houston Forensic Science Center, testif i ed that he com

pared two DNA prof

iles generated by

other analy sts in his laboratory and that the results im

plicated Garrett. Id. The question was whether adm ission of the testif ying expert’s testim ony

violated the Conf

rontation Clause. Id. T he court of a ppeals, rely ing on Paredes , concluded that it did not. It reasoned that the com puter-generated data was non-testim onial, and it noted that the com puter-generated DNA data was not included in the testif

ying expert’s report and that the underly ing reports were not adm itted into evidence. Id. at 555. Garrett nonetheless argued that the Conf rontation Clause was violated because, unlike in Paredes , the testif ying expert in his case did not supervise theMolina –10

analy sts who generated the DNA data. Id. a t 555–56. The court of appeals disagreed. Id. at 556. It acknowledged the distinction but explained that the dif f erence was irrelevant because, as in Paredes , the testif ying expert perf

orm ed the crucial, independent DNA-com

parison analy sis, and Garrett was able to cross-exam ine him about the analy sis and report. Id. Turning to Appellant’s case, the court of appeals recognized that Paredes and Garrett were distinguishable, but it nonetheless concluded that they controlled. The issue was not where the com

puter-generated DNA data was developed, it explained, because the data was non-testim onial regardless of where it was generated. The real issue was whether Halsell perf

orm ed the crucial DNA-com parison analy sis, which he did. The court of appeals also noted that, as in Paredes and Garrett , no reports written by or
com puter-generated data developed by a non-testif

ying analy st were adm itted into evidence. The court of

appeals was sim ilarly

unconvinced by

Appellant’s argum ent that Halsell lacked personal knowledge about the quality control protocols at Reliagene. It pointed out that the testif ying expert in Paredes also did not have personal knowledge about the analy s ts who developed the com puter-generated DNA data even though she supervised them

and could testif

y about the quality

control practices of

the laboratory

in general. The court of

appeals f ound m ore convincing the director’s testim ony in P aredes that, if there was a technical m istake processing evidence, no DNA prof ile would haveMolina –11

been generated rather than the wrong one, and it noted that Halsell gave sim ilar testim o ny . Halsell testif

ied that “he f

ound Reliagene’s com

puter-generated data to be reliable because he was able to generate a DNA prof ile based on his independent analy sis of the data” and that, “[ i]f Reliagene had not gathered this data in a scientif ically reliable
m anner,” he “would not expect a prof ile to be generated.” b. The Dissent Justice Countiss dissented. According to her, the m ajority erred in f o llowing Paredes because, in that case, the director’s testim o ny about the quality

control protocols used in her laboratory

provided indicia of

reliability

that the evidence was correctly processed, but Halsell could not provide such testim o ny . She argued that, unlike in Paredes , Halsell did not rely solely on the com

puter-generated DNA data. Rather, she claim ed, “Halsell m ade clear that his testim ony and his own report and conclusions were reliant upon Reliagene’s independently created work product . . . .” She also argued that Halsell did not lim it him self to testif ying about his com

parison of

the DNA prof

iles; he also “certif

ied that the analy sis perf

orm ed by an unknown ReliaGene analy st was accurate despite his adm i tted lack of personal knowledge of

ReliaGene’s procedures and processes.” PARTIES’S ARGUMENTS ON DISCRETIONARY REVIEW The issue here is whether Burch or Paredes controls. Appellant argues that Burch controls because Halsell was only a surrogate witness f

or testim onial statem ents in theMolina –12

Reliagene report, and he asserts that he was unable to “explore the ty pes of corruption and
m issteps the Conf

rontation Clause was designed to protect against” because Halsell could not be cross-exam ined about Reliagene’s quality control protocols. See Burch , 401 S.W
. 3d at 637–38. Appellant acknowledges that the Reliagene report was not adm itted at trial, but he contends that Halsell “testif ied directly

f rom the excluded Reliagene report.” The State responds that Halsell was not a surrogate because he perf orm e d his own independent analy sis and that the raw DNA data developed at Reliagene was not testim o nial because it “stand[ s] f or nothing on [ its] own.” It also asserts that there is no evidence that Halsell testif ied directly

f rom the Reliagene report, and it points out that Appellant provided no record citations to support his claim
. 4 ANALYSIS W e agree with the court of appeals’s analy sis. The Reliagene report is not testim o nial. It ref

lects that presum

ptive tests were perf

orm ed on som e o f

the item s of evidence, that an epithelial-cell f r action was recovered f

rom the vaginal swab(s), that epithelial-cell and sperm -cell f ractions were extracted f

rom the two undergarm e n t cuttings, that quality control protocols had been em ploy e d , and it includes data about the partial DNA prof

ile. None of those things are “inherently inculpatory

or [ were] created f or use against [ Appellant].” They stand f or nothing on their own without additional

4 The State is correct. Appellant included no record citations in his brief. See T E X . R. A P P . 38.1(I ) (“The brief must contain a clear and concise arg ument for the contentions made, with appropriate citations to authorities and to the record.”).Molina –13

analy sis, and even if

they had som e intrinsic inculpatory value, there was no suspect until y ears later when Appellant voluntarily provided a buccal swab. Burch , 401 S.W .3d at 639 (citing W illiams , 132 S. Ct. at 2228). W e also conclude that Halsell was not m erely a surrogate witness f

or the non-testif y ing analy sts. The Reliagene report was only a basis f or Halsell’s independent analy sis of

the two DNA prof

iles and his conclusions that the unknown epithelial-cell and the sperm -cell f

r actions likely cam e f

rom Appellant. Also, while Appellant claim s that Halsell testif

ied directly

f rom the Reliagene report in f

ront of the jury , and thereby

put its contents at issue, we have f ound no such evidence in the record. W e also note that the
com puter-generated DNA data was not included in Halsell’s report, and the Reliagene report was not adm itted into evidence. Finally , like the court of

appeals, we f

ind Appellant’s argum ent about Halsell’s lack of personal knowledge to be unpersuasive. As the court of appeals correctly

noted, Halsell gave testim ony

sim ilar to the director in Paredes , and their testim ony shows that an im portant control in the process is that, if there is an error processing evidence, no prof ile suitable f

or com parison would be generated, and that in no case would a processing error result in another person’s prof ile being m i stakenly

generated. As a result, we conclude that Halsell’s lack of personal knowledge about the quality control protocols in place at Reliagene does not change the outcom e. Justice Countiss believed that “Halsell did not just rely on raw com

p uter-generatedMolina –14

data f rom ReliaGene in order to reach his conclusion . . . .” and that Halsell “certif ied that the analy sis perf

orm ed by an unknown ReliaGene analy st was accurate despite his adm itted lack of

personal knowledge of

ReliaGene’s procedures and processes.” W e disagree. While Halsell said that he relied on the Reliagene report and Reliagene case f ile, the report included the com puter-generated DNA data in written f orm , and the case f

ile included worksheets and other raw com p uter data generated by

Reliagene to support the DNA prof

ile it developed. Halsell did not rely on an independent analy s is by a Reliagene analy st; he “checked their hom e work.” That is, he used the underly ing, raw data to determ ine if

he could develop the sam e prof i le as the analy sts at Reliagene, which he did. 5

5 The followingex chang e took place during the evidentiary

hearing , [ STATE:] W hen you say

“process,” what’s the difference between the processing of a sample and the actual analy sis of the sample? [ HAL SEL L :] So, processingwould be the phy sical looking at the evidence to determine, is there any

thing to test and then to actually ex tract the DNA from an item and send it to all the techniques that are necessary to g enerate that DNA profile. Analy sis, in that sense, is to look at the data that is used -- you look at the data that’s used to g enerate that DNA profile and compare it to, one, determine, is it interpretable? I s it something we should do a comparison on? And then if it is, to then look at any

known references that we may have and do a comparison with those references. [ STATE:] Now, when yo u say “data,” are y

o u referring

to, like, the lab report, or are y ou referring

to computer-g enerated data? [ HAL SEL L :] In this instance, I a ctually looked at printouts of computer-g enerated data, the orig inal computer-g enerated data. The State also asked Halsell what he relied on in forming his opinion and conclusions, and he responded simply , “The computer-g enerated data.” L ater, defense counsel asked Halsell whether he compared the known profile from the buccal swab to the “report from Reliag e ne Technology ,”Molina –15

Also, we do not understand Halsell to have certif i ed that Reliagene f

ollowed proper quality control protocols when it processed the evidence. He testif ied that, based on Reliagene' s case f

ile and statem ents contained therein, Reliagene appeared to use som e of the sam e controls as his laboratory did and that he thought that the data was reliable because he was able to generate the sam e DNA prof ile. 6 The court of

appeals was correct that this case is m ore like P aredes than Burch
.

CONCLUSION Because we agree with the court of appeals that there was no Conf rontation Clause violation, we af

f irm its judgm ent. Delivered: October 20, 2021 Publish

and Halsell answered that the known profile was “compared to the data that supported [ the Reliag ene] report.”

6 In response to the prosecutor asking Halsell duringthe evidentiary hearing whether there was any thing about the data itself that “lets y ou know that there were certain standards or control or other thing s in place to ensure the data is reliable from a scientific perspective,” Halsell said that, W h en I

say “review of the data,” and truly what I g uess I mean is, I

reviewed the case file, under the controls, meaning any reag ent blanks that are associated with the ex tractions. So, those are samples that do not contain DNA and are meant to test the reag ents to show that they ’re clean during processing . During one step, a positive control was introduced to show that when y ou’re copy

ing the DNA and making numerous, numerous copies of it, that step was correct. And, so, I also reviewed that to ensure that that worked appropriately , to show that step functioned the way

it should have. And, ultimately , all of those have to be acceptable for the data to be acceptable and relied upon.