Petition for Discretionary Review

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 District Court of Travis County TH

The Hon. David Crain, Presiding Judge

Third Court of Appeals No. 03-12-00466-CR

Submitted by:

The Law Offices of Ariel Payan

1012 Rio Grande

Austin, Texas 78701

Tel. 512/478-3900

Fax: 512/472-4102

Ariel Payan

State Bar No. 00794430

Court-Appointed Attorney for Petitioner

Oral Argument Requested

PD-1564-14

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 2/26/2015 12:32:54 PM

Accepted 2/26/2015 4:28:05 PM

ABEL ACOSTA

CLERK
i

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
ii

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:

PDR Counsel:

Ariel Payan

1012 Rio Grande

Austin, Texas 78701

Trial Counsel:

Ariel Payan

Jon Evans

State of Texas

Rosemary Lehmberg

P.O. Box 1748

Austin, TX 78767

Appellate Counsel:

Scott Talliaferro

State Prosecuting Attorney

Lisa C. McMinn

Trial Counsel:

Jim Young

Matt Foye

Trial Judge

Honorable David Crain, 331 presiding.
iii

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
iv

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 District rd

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. 
v

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.
1

Petition for Discretionary Review

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 District Court of Travis County TH

The Hon. David Crain, Presiding Judge

Third Court of Appeals No. 03-12-00466-CR

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)

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

1

2014 WL 5423760

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR DESIGNATION

AND SIGNING OF OPINIONS.

MEMORANDUM OPINION

DO NOT PUBLISH

Court of Appeals of Texas, Austin.

Lester Ray Guy, Appellant

v.

The State of Texas, Appellee

NO. 03–12–00466–CR | Filed: October 22,

2014

FROM THE DISTRICT COURT OF TRAVIS

COUNTY, 331ST JUDICIAL DISTRICT, NO.

D–1–DC–10–302548, HONORABLE DAVID

CRAIN, JUDGE PRESIDING

Attorneys and Law Firms

Ariel Payan, The Law Offices of Ariel Payan, Austin,

TX, for Appellant.

M. Scott Taliaferro, Assistant District Attorney,

Austin, TX, for Appellee.

Before Justices Puryear, Pemberton, and Field

MEMORANDUM OPINION

David Puryear, Justice

*1 Lester Ray Guy appeals his conviction of capital

murder for the 1978 rape and asphyxiation of an elderly

woman, Hazel Ivy. For over twenty years the crime

went unsolved, but beginning in 2001 the Austin Police

Department's cold-case unit reopened the investigation,

eventually subjecting stored biological evidence from

Ivy's autopsy to DNA testing and finding probable

cause to charge appellant. In 2012, the case was tried

to a jury, which found appellant guilty. The court

sentenced appellant to life imprisonment, consecutive

to the life sentence he is currently serving for an

unrelated offense. Guy appeals his conviction in nine

issues. For the reasons that follow, we affirm his

conviction and punishment.

Factual and Procedural Background

Sixty-six-year-old Ivy was found dead in her apartment

on September 15, 1978. At trial, the Travis County

medical examiner testified that he performed an

autopsy on Ivy's body and determined that she had

been raped and killed by asphyxiation, possibly by

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

medical examiner's offices. Evidence showed that

several items of physical evidence were also collected

at the crime scene, including sheets from the bed where

Ivy was found.

Although appellant's name surfaced during initial

investigation of the crime, no charges were filed against

him at the time, and the case went unsolved for many

years. The vaginal slides remained in the medical

examiner's offices, and the other physical evidence

remained in the Austin Police Department's evidence

storage room.2In 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

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

time.

In 2003, appellant agreed to meet with Ehlert to

discuss the case. At the time, appellant was

incarcerated at the Texas Department of Criminal

Justice (TDCJ) for an unrelated offense and was

transported to Austin for the meeting. After the

meeting, Ehlert transported appellant back to TDCJ
Guy v. State, Not Reported in S.W.3d (2014)

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2

custody and purchased him a fast-food meal on the

way. Appellant left his fast-food trash in Ehlert's car,

which Ehlert later collected and submitted to the DPS

Crime Lab for DNA analysis.

*2 The DPS lab obtained a partial DNA profile from

appellant's drinking straw and compared it with the

DNA profile from the Vagina 1 slide. From that

comparison, DPS witnesses testified that appellant

could not be excluded as the contributor of the sperm

cells on the slide. However, the DPS analysis also

indicated that the “random match probability”3that an

individual other than appellant was the contributor was

“only 1 in 75 for Caucasians, 1 in 94 for blacks, and 1

in 53 for Hispanics,” and the investigation was again

paused.

Ehlert testified that in 2007 he learned of a new DNA

test called “mini-STR” or “mini-Filer,” which he

explained is more sensitive than a standard DNA test

because it can obtain DNA profiles from old, degraded

samples and very small amounts of genetic material.

The cold-case unit submitted the Vagina 2 slide to

Orchid Cellmark, a private lab in Dallas that was

utilizing the new test. Orchid Cellmark's mini-STR test

returned a DNA profile for the sperm contributor and

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,

testified that the probability of an individual other than

appellant matching the Vagina 2 profile were 1–in–186

million African–Americans.5 Dr. Ranajit Chakraborty,

a statistical geneticist who developed some of the

technologies used in DNA testing, also testified as an

expert witness for the State. Dr. Chakraborty testified

that he reviewed Orchid Cellmark's mini-STR protocol

both generally and as applied in this case for accuracy

and reliability and determined it to be sound.

The most contentious issue at trial and on appeal

involves Orchid Cellmark's interpretation of the

mini-STR results. The State's experts explained that

DNA testing involves the generation of a graph known

as an electropherogram, which maps “peaks” reflecting

the existence of particular DNA markers (called

“alleles” and each identified by a number) at particular

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

father).

6

 Two distinct peaks at a particular locus on the

electropherogram signals the presence of two different

alleles there, which is referred to as heterozygotic. If

the individual received identical alleles from both his

mother and father, that locus is referred to as

homozygotic, and ordinarily the electropherogram

would reflect only one peak at that locus. The

electropherogram measures peaks in “relative

fluorescence units” (RFUs), reflecting the presence of

particular alleles and the absence of others at each

studied locus. The height and location of the RFU peak

indicates which alleles are present and at which loci,

and labs conducting DNA tests utilize “calling

thresholds.” If an RFU peak is above the minimum

calling threshold, the lab “calls” that allele for the

targeted locus and considers it a part of the DNA

profile it is generating.

*3 Nasir testified that the mini-STR test analyzes eight

of the fifteen loci that are analyzed in standard STR7

testing but that the technology for both tests is basically

the same. She further testified that the mini-STR is

commonly used for degraded DNA (where the DNA

has broken down into smaller fragments) or for very

low quantities of DNA and is more sensitive than

regular STR testing because it can analyze smaller

DNA fragments by using a different chemical

composition in the testing process.

Nasir explained that in analyzing an electropherogram,

a DNA profile is created, identifying which alleles are

present at each of the targeted loci and that her lab's

electropherogram of the sperm in the Vagina 2 slide

identified only one significant peak at what is referred

to as the “FGA locus”—allele number 19.8 Various

experts testified that individual locus results can

sometimes be inconclusive. One reason they provided

is that with degraded or low-quantity DNA samples,

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

registering on the electropherogram because of its

degradation or low quantity. However, the various

experts explained that a single peak at any given locus

could also signify that the locus is homozygotic

because, for instance, the individual received a “19” at

the locus from his mother and father, resulting in only

one RFU peak on the electropherogram.

Nasir testified that with respect to the FGA locus, she

could not definitively determine whether the single
Guy v. State, Not Reported in S.W.3d (2014)

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3

RFU peak was due to allelic dropout or because the

allele at that locus was homozygotic. Because Nasir

could not conclusively make such a determination, and

because of her experience and knowledge that allelic

dropout commonly occurs in degraded and

low-quantity DNA samples, she determined that

appellant could not be excluded as the donor of the

sperm (because the FGA allele identified a “19,” and

appellant's profile at the FGA locus contains a “19” and

a “23”). Accordingly, Nasir did not include the FGA

locus in her calculation of random match probability.

She testified that because excluding the FGA locus

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) than if she had included the FGA locus. Dr.

Chakraborty testified that he reviewed Nasir's results

and concurred with her decision to exclude the FGA

locus.

*4 Dr. Chakraborty also testified that while Nasir's

random match probability calculation was accurate, he

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

Cellmark did not. Using the additional population data,

Dr. Chakraborty testified that the probability that the

sperm contributor was an African–American unrelated

to appellant were 1–in–2.2 billion. He testified that the

entire world population at the time of the homicide was

only close to two billion. Dr. Chakraborty also

provided what he described as a “more conservative”

probability calculation, due to the fact that in statistics,

when a particular DNA profile is in fact present in a

certain population, there is a greater chance that

another individual will exhibit that same profile. Dr.

Chakraborty testified that using this “more

conservative” approach, the odds of finding another

African–American with the same seven-loci profile as

appellant were 1–in–1.08 billion.

Issues on appeal

Appellant first challenges the sufficiency of the

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

and then determine whether, based on that evidence

and reasonable inferences therefrom, any rational trier

of fact could have found the essential elements of the

crime beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307 (1979); Clayton v. State, 235

S.W.3d 772, 778 (Tex.Crim.App.2007). This standard

accounts for the factfinder's duty to resolve conflicts in

the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.

Clayton, 235 S.W.3d at 778. Our review of “all of the

evidence” includes evidence that was properly and

improperly admitted, and when the record supports

conflicting inferences, we presume that the factfinder

resolved the conflicts in favor of the prosecution. Id.

Direct and circumstantial evidence are treated equally,

and circumstantial evidence alone can be sufficient to

establish guilt. Id.

Appellant makes two main arguments challenging the

sufficiency of the evidence to support the verdict: (1)

the mini-STR test that Orchid Cellmark performed, and

on which the State relied almost exclusively in

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

performed by DPS employee Gary Molina conclusively

excluded appellant as the perpetrator.

With respect to the mini-STR test, various experts

asserted that the test is 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 targeted by the regular STR

test. Nasir and Dr. Chakraborty explained the

phenomenon of allelic dropout and why use of only

seven of the eight targeted loci and exclusion of the

FGA locus in their statistical analyses was an

appropriate and conservative approach in this case,

where there were strong indicators that allelic dropout

had occurred. Dr. Chakraborty reviewed Orchid

Cellmark's electropherograms, confirmed Nasir's

interpretation of the results, and provided further

statistical analysis. Dr. Chakraborty also explained that

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

only sixteen percent due to the many alleles possible

there.

Appellant's expert witness, Dr. Laurence Mueller,

testified that because there was no way to confirm that

allelic dropout indeed occurred at the FGA locus, it

was possible that the locus was homozygotic, which

would have conclusively excluded appellant from being

the sperm contributor. Dr. Mueller suggested that the
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probability of allelic dropout occurring at the FGA

locus could be estimated and added into the

calculations performed by Dr. Chakraborty and Nasir,

and he criticized their analyses for not so doing but,

rather, simply excluding the locus from their

calculations. However, Dr. Mueller offered no

alternative statistical analysis reflecting allelic-dropout

probability for the mini-STR tests performed here,

merely noting that some researchers in Europe had

recently validated a study for a similar DNA test kit

that provided “reasonably good” predictions of allelic

dropout rates while conceding that dropout probability

rates for the mini-STR test were not readily available.

*5 The jury was free to assign weight to these various

expert opinions, as issues of credibility and weight of

the evidence lie exclusively within the province of the

jury. See Brooks v. State, 323 S.W.3d 893, 911–13

(Tex.Crim.App.2010) (direct-appeal courts are not

permitted to act as “thirteenth juror”). We conclude

that the record contains sufficient evidence to support

appellant's conviction based on the mini-STR test and

its interpretation.

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

alleles were present at each locus) identifying alleles at

two loci (one of which was the FGA) that are

inconsistent with appellant's DNA profile. However,

neither appellant nor the State specifically questioned

Molina about that exhibit and its alleged conclusiveness

that appellant could not have been the perpetrator.

And, despite Defense Exhibit 1, Molina stated at least

twice in his testimony that appellant, in fact, could not

be excluded as the contributor of the sperm found

inside the victim. Moreover, every other witness who

testi fied ab o u t the v ari o u s D N A t e st s

performed—including appellant's own expert, Dr.

Mueller—similarly concluded that appellant could not

be excluded by virtue of any of the test results,

including the original Molina test.

Furthermore, several witnesses (including Dr. Mueller)

provided an explanation of the alleged “two-loci

mismatch” between appellant's DNA and the DNA

recovered from the Vagina 1 slide that the jury could

have found credible: because the quantity of biological

material tested was both very small and very old and

degraded, there was likely “allelic dropout” at those

loci, making it possible that other alleles (matching

appellant's) were present at the loci but simply not

registering on the electropherograms.9 To the extent

that Defense Exhibit 1 contradicts the testimony from

several other live witnesses, the jury was free to

disregard that evidence, and we may not supplant the

jury's fact-finding role with respect to its weight. See

Moreno v. State, 755 S.W.2d 866, 867

(Tex.Crim.App.1988) (it is not reviewing court's duty

to disregard, realign, or weigh evidence). We hold that

the evidence was sufficient to support appellant's

conviction and, accordingly, overrule his first issue.

Appellant's second issue argues that the trial court

erred in denying his motion to suppress evidence in the

form of the drinking straw that he left behind in the

police car. We review a trial court's ruling on a motion

to suppress evidence for abuse of discretion, viewing

the facts in the light most favorable to the trial court's

decision. Shepherd v. State, 273 S.W.3d 681, 684

(Tex.Crim.App.2008). We give “almost total

deference” to the trial court's express or implied

determination of historical facts and review de novo its

application of the law of search and seizure to those

facts. Id.

*6 Appellant argues that he had a legitimate

expectation of privacy in his DNA and that the State

violated this by seizing his fast-food trash without his

consent. See Villarreal v. State, 935 S.W.2d 134, 138

(Tex.Crim.App.1996) (en banc) (burden of establishing

legitimate expectation of privacy rests on defendant).

However, the trial court could reasonably have found

that appellant had no legitimate expectation of privacy

in this instance because he was incarcerated at the time,

and prisoners have greatly diminished privacy rights

and no legitimate expectation that their DNA will

remain private. See Oles v. State, 993 S.W.2d 103, 108

(Tex.Crim.App.1999) (lowered expectation of privacy

exists in arrest and detainment situations); Pollard v.

State, 392 S.W.3d 785, 797 (Tex.App.—Waco 2012,

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

involved, and the legitimate government interest in

using DNA to investigate crime.”); see also Tex. Gov't

Code § 411.148 (specifically authorizing collection of

DNA from prisoners); Velasquez v. Woods, 329 F.3d

420, 421 (5th Cir.2003) (collection of DNA samples

from felons does not violate Fourth Amendment). Not

only was appellant incarcerated and therefore lawfully
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in police custody at all relevant times, but also there

was no physical intrusion involved in obtaining

appellant's DNA from the fast-food trash.

The trial court could also have reasonably concluded

that appellant abandoned the trash and thereby had no

legitimate expectation of privacy therein. See Comer v.

State, 754 S.W.2d 656, 659 (Tex.Crim.App.1986) (en

banc) (op. on reh'g) (defendant must intend to abandon

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,

257 (Tex.Crim.App.1988) (general rule is that when

police take possession of abandoned property, there is

no seizure under Fourth Amendment); Pollard, 392

S.W.3d at 797–98 (where defendant left spoon and cup

behind in detox cell, he did not demonstrate genuine

intention to keep DNA private and therefore

abandoned it).10 The trial court did not abuse its

discretion in denying appellant's motion to suppress,

and we overrule his second issue.

In his third issue, appellant argues that the trial court

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

infringement of this right are analyzed under the Barker

test, which is a balancing test in which the conduct of

both the State and the defendant are weighed and

which must first be triggered by a delay that is

unreasonable enough to be “presumptively prejudicial.”

See Barker v. Wingo, 407 U.S. 514, 530–31 (1972);

Cantu v. State, 253 S.W.3d 273, 280–81

(Tex.Crim.App.2008). The four main factors

considered in determining whether a speedy-trial

violation has occurred are: (1) the length of delay, (2)

the reason for the delay, (3) the defendant's assertion of

his right to a speedy trial, and (4) prejudice to the

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

charging instrument with prejudice; because this is a

radical remedy, “courts must apply the Barker

balancing test with common sense and sensitivity to

ensure that charges are dismissed only when the

evidence shows that a defendant's actual and asserted

interest in a speedy trial has been infringed.” Cantu,

253 S.W.3d at 281.

The appellate court applies an abuse-of-discretion

standard of review for the factual components of a

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

fact determinations and legal conclusions, but the

balancing test as a whole is purely a legal question. Id.

The appellate court must uphold the trial court's ruling

if it is supported by the record and is correct under the

applicable law. Shaw, 117 S.W.3d at 889.

*7 The first factor, length of delay, is measured from

the time the defendant is arrested or formally accused,

and delay approaching one year is sufficient to trigger

a speedy-trial inquiry. Id. Here, a probable cause

affidavit was issued for appellant's arrest on December

13, 2010, and the trial began on May 29, 2012, an

interval of almost eighteen months. This delay meets

the “presumptively prejudicial” threshold and therefore

triggers inquiry into the three other factors. See id. This

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

examination of the claim. See id.

With respect to the reason for the delay, a neutral

reason such as overcrowded courts or negligence

should not be given significant weight against the

government, and a valid reason should not be weighed

against the government at all.State v. Munoz, 991

S.W.2d 818, 822 (Tex.Crim.App.1999). At the hearing

on appellant's motion, the State asserted that the delay

was due to a crowded docket in Travis County and to

the challenges of prosecuting an offense that occurred

in the distant past. There was no evidence of deliberate

attempts by the State to delay the trial. We conclude

that this factor at most weighs slightly in favor of

appellant.

Regarding the third factor, the defendant's assertion of

his right to a speedy trial, appellant made no attempt to

assert that right until he filed his motion to dismiss on

December 20, 2011, over a year after he was charged.

The trial began in May 2012, and appellant did not seek

a hearing on his motion until the first pretrial hearing in

April 2012, over three months after he filed it. Such

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
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speedy trial indicates strongly that he did not really

want one and that he was not prejudiced by not having

one.” Id. This factor weighs moderately to heavily in

the State's favor.

Finally, the fourth factor—prejudice to the

defendant—does not weigh in appellant's favor at all

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

incarceration, (2) minimizing anxiety and concern of

the accused, and (3) limiting the possibility that the

defense will be impaired, with this last subfactor being

the most serious. Id. Here, appellant was not

prejudiced with respect to the first interest, as he was

already in prison for an unrelated offense at all relevant

times. He also offered no evidence that the delay

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

evidence that his ability to defend himself was

adversely affected by the approximate eighteen-month

delay.

Weighing all four of these factors together, we hold

that their balanced weight is against finding a violation

of appellant's right to a speedy trial and that the trial

court did not err in denying his motion to dismiss the

indictment. We overrule appellant's third issue.

Appellant next alleges that he was denied his

constitutional right to “due process” when, prior to

voir dire, the district clerk provided the State with juror

questionnaires that contained greater demographic

information than those provided to defense counsel.

Specifically, the State received venire members' full

residential addresses, while appellant received only

their zip codes. Also, the State received venire

members' social security numbers and dates of birth,

while appellant received only their ages. Appellant

discovered this questionnaire discrepancy at the hearing

during which the parties and the Court discussed

venire-member strikes and jury composition. He argues

that the discrepancy gave the State an “unfair

advantage” during voir dire and violated his right to

due process, which requires a “reasonably level playing

field” between the defense and prosecution at trial. See

De Freece v. State, 848 S.W.2d 150, 159

(Tex.Crim.App.1993) (en banc) (applying principle of

“level playing field” to appointment of neutral

psychiatrist to assist defendant with insanity defense).

Without this additional demographic information,

appellant complains, his counsel was unable to

adequately prepare to question the venire members and

run criminal background checks on them. The trial

court overruled appellant's objection to this

discrepancy after determining that he failed to

demonstrate any harm.

*8 Appellant argues that the questionnaire discrepancy

constitutes a constitutional error, see Tex.R.App. P.

44.2(a), but he cites no authority supporting such

contention. We conclude that the error, if any, was not

constitutional and is subject to review only for error

affecting a substantial right. See id. (b) (we must

disregard any error not affecting a substantial right).

We conclude so for two reasons.

First, regarding the undisclosed home addresses of the

venire members, appellant could simply have asked the

members during voir dire to provide their addresses or

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

of his peremptory strikes. See Gonzales v. State, 3

S.W.3d 915, 917 (Tex.Crim.App.1999) (jury

questionnaires do not relieve counsel of duty to elicit

pertinent information during voir dire); Murphy v.

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

otherwise be obtained by oral questions). “ ‘Diligent

counsel’ will not rely on written questionnaires to

supply any information that counsel deems material.”

Gonzales, 3 S.W.3d at 917. Although appellant

emphasizes the importance of the demographic

information revealed by the venire members' home

addresses, “it was apparently not important enough to

seek the same information” by asking the venire

members directly for it. Murphy, 229 S.W.3d at 338.

Moreover, the record shows that defense counsel was

not denied the opportunity to inquire of the venire on

any matter that would have been included in a written

questionnaire or that he was limited in the amount of

time permitted to conduct voir dire. The fact that the

State had access to the venire members' addresses prior

to voir dire did not excuse appellant from his duty to

elicit that same information if he truly deemed it

material.
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Secondly, as to appellant's alleged inability to run

criminal background checks because he was not

provided venire members' social security numbers and

dates of birth, the State did run background checks and

offered to provide appellant such information, as well

as the other missing data, at the hearing when appellant

first learned about and objected to the questionnaire

discrepancy. However, appellant did not accept the

State's offer to view the information or otherwise

pursue the matter, such as seeking additional voir dire

time. Furthermore, appellant has not established that he

would have exercised any particular peremptory

challenge differently if the personal information had

been disclosed to him earlier or that he was otherwise,

in fact, harmed.

On this record, we hold that the trial court did not err

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

resulting from the discrepancy did not affect appellant's

substantial rights. Accordingly, we overrule appellant's

fourth issue.

Appellant asserts in his fifth issue that the trial court

improperly denied his Batson challenge to the State's

peremptory strikes of two African–American jurors.

See Batson v. Kentucky, 476 U.S. 79, 89 (1986)

(race-based jury strikes deny defendant right to

judgment by one's peers). A Batson challenge to a

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

the strike must articulate a race-neutral explanation,

and (3) the trial court must decide whether the party

opposing the strike has proved purposeful racial

discrimination. Grant v. State, 325 S.W.3d 655, 657

(Tex.Crim.App.2010). In reviewing a trial court's

ruling on a Batson challenge, the appellate court must

review the record in the light most favorable to the trial

court's ruling and not disturb the ruling unless it is

clearly erroneous. Young v. State, 283 S.W.3d 854,

866 (Tex.Crim.App.2009). Such a ruling is not clearly

erroneous if it is supported by the record. Vargas v.

State, 838 S.W.2d 552, 554 (Tex.Crim.App.1992) (en

banc).

*9 Because the State offered its reasons for the strikes,

the prima-facie-case inquiry is moot, and we move on

to whether the reasons offered are in fact race-neutral.

Johnson v. State, 68 S.W.3d 644, 649

(Tex.Crim.App.2002). With respect to both struck

jurors, Numbers 18 and 19, the record demonstrates

that the State provided the court with a credible,

race-neutral explanation: the jurors had stated on their

questionnaires that they had never been accused of a

crime, but in the course of the State's questioning them

in voir dire, it turned out that the two jurors had not

answered those questions truthfully. The State struck

a third, non-African-American juror for this very same

reason. The trial court found the State's reason for

striking the jurors to be non-discriminatory, and we

find such ruling supported by the record and not clearly

erroneous. Furthermore, appellant did not meet his

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

appellant's fifth issue.

In his sixth issue, appellant argues that local law

enforcement destroyed physical evidence prior to trial

that would have exonerated him. Specifically, he

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

bad faith” by destroying the evidence or failing to

“track down or even try to locate” the last person in

charge of it. The State responds that appellant failed to

preserve this issue and that, in any case, he has failed to

establish that the police acted with bad faith in relation

to the missing evidence. We agree.

Appellant did not seek dismissal of the indictment on

due-process grounds or otherwise object or present

this issue to the trial court and obtain an adverse ruling.

He has, therefore, waived the issue and cannot properly

raise it for the first time on appeal. See Tex.R.App. P.

33.1(a); Yazdchi v. State, 428 S.W.3d 831, 844

(Tex.Crim.App.2014) (failure to object may waive

even constitutional errors). However, even if appellant

had not waived this issue, we would overrule it because

there was no evidence that the missing evidence (which

was never subjected to forensic testing) would have

been exculpatory or that law enforcement acted in bad

faith. See Arizona v. Youngblood, 488 U.S. 51, 56

(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

defendant,” failure to preserve such potentially useful

evidence does not constitute denial of due process

unless criminal defendant can show bad faith on part of
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police); Ex parte Napper, 322 S.W.3d 202, 230

(Tex.Crim.App.2010) (same). Accordingly, we

overrule appellant's sixth issue.

Appellant next argues that the trial court erred in

overruling his motion for mistrial, which he filed after

learning that two jurors were present in an elevator

when an attorney unconnected to this case asked

appellant's attorney how many “priors” appellant had,

allegedly in violation of article 36.22 of the Code of

Criminal Procedure. See Tex.Code Crim. Proc. art.

36.22 (“No person shall be permitted to converse with

a juror about the case on trial except in the presence

and by the permission of the court.”). This elevator

interaction was immediately brought to the attention of

the trial court, which conducted a hearing outside the

presence of the jury before the trial resumed. At the

hearing, one of the two jurors indicated that he had not

heard any of the above-referenced interaction. The

other juror stated that immediately upon hearing the

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

any of the other jurors and that the elevator interaction

would not affect his ability to make a fair and impartial

decision. The judge instructed both jurors to disregard

what, if anything, they heard in the elevator and to not

repeat it to any other juror, and both jurors indicated

that they would be able to follow these instructions.

Appellant then filed a motion for mistrial, which the

trial court denied.

*10 Mistrial is appropriate for only “highly prejudicial

and incurable errors,” and a trial court's denial of a

motion for mistrial is reviewed under an

abuse-of-discretion standard. Simpson v. State, 119

S.W.3d 262, 272 (Tex.Crim.App.2003). Because the

primary goal of article 36.22 is to insulate jurors from

outside influence, if a violation is shown, the

effectiveness of possible remedies will be determined in

part by whether the conversation influenced the juror.

O con v. Stat e , 284 S.W .3d 880, 884

(Tex.Crim.App.2009). A violation of article 36.22,

once proven by the defendant, triggers a rebuttable

presumption of injury to the accused, and a mistrial

may be warranted. Id. When determining whether the

State sufficiently rebutted the presumption of harm, we

view the evidence in the light most favorable to the trial

court's ruling and defer to the trial court's resolution of

historical facts and its determinations concerning

credibility and demeanor. Id.

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

juror does not respond. See Palasota v. State, 460

S.W.2d 137, 141 (Tex.Crim.App.1970) (because juror

did not respond to remarks of unidentified woman

asking how jurors could “sleep at night” and that

“damned jury ought to be shot between the eyes,” such

remarks did not constitute “conversation” under article

36.22); see Badgett v. State, No. 04–07–00364–CR,

2009 WL 142324, at *11 (Tex.App.—San Antonio

Jan. 21, 2009, pet. ref'd) (mem.op.) (because juror did

not respond to statement made by unidentified man

who told juror that deceased victim had been “real nice

young man,” no “conversation” had occurred).

Similarly, we conclude that the one unresponded-to

question about how many “priors” appellant had did

not constitute “conversation” under article 36.22, and

there is no presumption of harm.

However, even if the elevator communication could be

considered a “conversation” under article 36.22, the

trial court could reasonably have determined that any

presumption of harm was rebutted by the jurors'

statements that they could be impartial and disregard

the remark, especially in conjunction with the court's

instruction to disregard the comment and not

communicate it to other jurors, which we must

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

(Tex.Crim.App.2000) (in most instances, trial court's

instruction to disregard cures error). The alleged error

here was not “highly prejudicial and incurable,” and we

hold that the trial court's denial of appellant's motion

for mistrial was within the zone of reasonable

disagreement. We overrule appellant's seventh issue.

Lastly, appellant complains about the trial court's

admission of expert testimony from Dr. Chakraborty

and Nasir. Prior to admission of the expert testimony,

the trial court held a Daubert hearing, the transcript of

which is in the appellate record. Before admitting

expert testimony, the trial court must be satisfied that

three conditions are met: (1) the witness qualifies as an

expert by reason of her knowledge, skill, experience,

training, or education (“qualification”); (2) the subject

matter of the testimony is an appropriate one for expert

testimony (“reliability”); and (3) admitting the expert
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testimony will actually assist the factfinder in deciding

the case (“relevance”). Davis v. State, 329 S.W.3d 798,

813 (Tex.Crim.App.2010); see also Tex.R. Evid. 702.

Appellant challenges the second condition, reliability,

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

said theory is valid, and (3) the technique was properly

applied on the occasion in question. Bigon v. State, 252

S.W.3d 360, 367 (Tex.Crim.App.2008). A trial court's

ruling on the admissibility of expert testimony is

reviewed for abuse of discretion, and that ruling must

be upheld if it is within the zone of reasonable

disagreement. Id.

*11 Regarding Nasir, appellant asserts that her

testimony is unreliable because: (1) Orchid Cellmark

uses less than the manufacturer-recommended amount

of genetic material in performing the mini-STR test; (2)

the validation studies Orchid Cellmark completed were

not peer reviewed; and (3) Orchid Cellmark had not

completed a “stochastic threshold” study for allelic

dropout and, therefore, Nasir's theory about allelic

dropout was invalid and improperly applied on this

occasion.

With respect to appellant's contention about the

manufacturer's recommended sample size, Nasir

testified at the Daubert hearing that although the

mini-STR manufacturer identifies an optimum range for

sample size, Orchid Cellmark had performed its own

internal validation and sensitivity studies in 2008 to

determine the smallest sample sizes from which they

were able to obtain full DNA profiles. The sample size

used in this case was consistent with the sample sizes

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

kit using a “half volume reaction,” making its similar

application of the mini-STR in this case appropriate

and reliable.

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

national DNA advisory board. Finding that the

validations were acceptable, both outside agencies

accredited Orchid Cellmark with respect to its

mini-STR protocols.

And finally, regarding appellant's complaint that Orchid

Cellmark had failed to complete a stochastic threshold

study11 prior to testing the samples at issue here, we

conclude that Nasir provided sufficient testimony

explaining how such a study was not necessary for

appropriate use of the mini-STR and application of the

allelic dropout theory or for reliability of the test

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

FGA locus was, in fact, a conservative decision due to

the possibility of allelic dropout, which is a common

phenomenon with degraded and very small quantities

of DNA and with the design of the mini-STR test kit in

particular. We conclude that the foregoing provided a

reasonable basis for the trial court to conclude that

Nasir's expert testimony was reliable.

Appellant raises the very same issues about reliability

concerning Dr. Chakraborty's testimony, specifically

complaining about his reliance on the Orchid Cellmark

tests in preparing his statistical analysis. Because

appellant raises no issues specific to Dr. Chakraborty

that differ from those he raises with respect to Nasir

and Orchid Cellmark's use of the mini-STR test, we

need not address this issue separately.12 Accordingly,

we overrule appellant's eighth and ninth issues and hold

that the trial court did not abuse its discretion in

admitting the expert testimony of Nasir and Dr.

Chakraborty.

CONCLUSION

*12 For the foregoing reasons, we overrule each of

appellant's issues and affirm the trial court's judgment

of conviction and punishment.
Guy v. State, Not Reported in S.W.3d (2014)

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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 buccalswabs 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 formof 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 byvirtue ofthe officers' premeditated

decision to obtain his DNA fromthe 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 oftrial Orchid Cellmark had not yet completed itsstudyto 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.
Guy v. State, Not Reported in S.W.3d (2014)

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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 Works.