                              NO. 07-96-0140-CR

                          IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL B

                                JUNE 9, 1998

                   _________________________________

                   RUSSELL ALAN GRIFFITH, APPELLANT

                                     V.

                        THE STATE OF TEXAS, APPELLEE


                   __________________________________

    FROM THE 99TH JUDICIAL DISTRICT COURT OF LUBBOCK COUNTY;

        NO. 91-414023; HONORABLE MACKEY K. HANCOCK, JUDGE

                   _________________________________


Before BOYD, C.J., DODSON & QUINN, JJ.

     In a jury trial, appellant Russell Alan Griffith was convicted

of sexual assault. The jury assessed his punishment at confinement

for twenty years in the Texas Department of Criminal Justice,

Institutional Division.         By three         points of error, appellant

contends the trial court erred in admitting State’s evidence

regarding    DNA   testing     involving     a    probability    of    paternity

statistic using Bayes’ Theorem as violating the presumption of

innocence,   or    in   the   alternative,       the   trial   court   erred   in

admitting such evidence without testimony on the mathematical
applications of the test results, and that the court erred in

overruling his motion to set aside the verdict and judgment where

the prosecution introduced inadmissible evidence clearly calculated

to inflame the minds of the jury.        Affirmed.


      On July 17, 1989, the staff of the Lubbock State School (the

School) had a female patient, T.S., examined because of abdominal

swelling.      T.S. was a profoundly retarded female client in her

early thirties.     With an I.Q. of 11, T.S. had the mental capacity

of a two year old child, and had very diminished communication

skills.   She was therefore unable to tell anyone that she had been

assaulted.     An x-ray revealed that T.S. was pregnant.             Further

diagnosis placed the date of conception between February 7, 1989

and March 27, 1989.    A child was born on December 7, 1989.


      After approximately one year, School officials notified the

police when they began to suspect that an employee may have been

the father.      Prior to that time, the School believed that the

father was probably one of the male clients at the School.


      Appellant started work at the School as a direct care worker

in   August,   1988.   Appellant   worked    in   the   restricted    access

dormitories on the night shift from 10 p.m. to 6 a.m.                 After

reviewing sign-in logs, police determined that five male direct-

care workers, including appellant, had access to T.S. between the

dates of the estimated conception. Blood samples from T.S., the


                                   -2-
baby, and the five male suspects were sent to the University of

North Texas Health Science Center in Fort Worth for DNA testing.


      Dr.    Arthur      J.   Eisenberg,     the    administrator     of   the   lab,

testified as a State’s witness at trial.                    The DNA test results

excluded four of the five male direct-care workers from being the

father of the child.               Appellant was not excluded.        Dr. Eisenberg

testified that three different statistical values were generated

from appellant’s DNA test results.                 One of those statistics, the

probability of paternity, was challenged by the defense. A hearing

on a motion to suppress this evidence was had, and the trial court

overruled the motion.              The evidence was then admitted before the

jury which convicted him of sexual assault and sentenced him to

twenty      years   in    the       Texas   Department     of   Criminal   Justice,

Institutional Division.              Appellant timely filed a motion for new

trial, which was denied.              This appeal followed.


                      Appellant’s First Point of Error

      In his first point of error, appellant complains that the

trial court erred in admitting testimony regarding DNA testing,

specifically the probability of paternity statistic based on Bayes’

Theorem, because the calculation was based on a presumption of

guilt.   Under this point of error, appellant contends that the use

of   Bayes’    Theorem        to    calculate     the   probability   of   paternity

statistic permitted the State to convict him without meeting its


                                            -3-
burden of proof.    Specifically, he says that the use of the Bayes’

Theorem to calculate the probability of paternity statistic assumes

a fact for which there is no independent proof — i.e., that he had

sex with the complainant.      Appellant limits his challenge to the

DNA evidence admitted at trial to the probability of paternity

statistic calculated by the use of Bayes’ Theorem.            The remaining

DNA evidence in the record is unchallenged.


      The record shows that there are two possible results from a

DNA paternity test. Either a potential father is excluded, meaning

he is shown to not be the father, or he is included.              If the male

is   excluded   from   paternity   by    the   test,   no   statistics    are

generated. If the male is included, the results are not absolutely

conclusive that he is the father and there remains a chance or

possibility that he is not the father, even though that possibility

in some instances may be very de minimis.              This possibility is

stated statistically.     Nevertheless, only the biological father’s

test results will match the child’s test results.           When the male is

included, as appellant in this instance, the test results are

reduced   to    statistical   figures    derived   from     all   frequencies

assigned to each chromosome region tested (i.e., six in this

instance).     The statistical values are reported in three ways: the

paternity index, the probability of exclusion, and the probability

of paternity.




                                   -4-
       The paternity index is a value reflecting the likelihood that

a tested man is the father of the child as opposed to an untested

man of the same race.    It is expressed in a number.     If a paternity

index can be assigned to a man, it means that he is that many more

times likely to be the father than any other randomly selected male

of his race. Paternity index is determined by multiplying together

all of the allele frequencies (rate of occurrence)       for each region

tested.


       The probability of exclusion considers the DNA of the mother

and the child.       This number is a percentage.       Since half of a

child’s DNA comes from each parent, by comparing the DNA of the

mother and the child, then excluding the DNA that matches, the

remaining DNA of the child necessarily belongs to the father. This

number reflects the strength of the DNA test, by showing the

percentage of the male population that would have been excluded by

the test.


       Finally, DNA test results can be expressed as a probability of

paternity.      This number is also a percentage.    This statistic is

calculated using Bayes’ Theorem, a mathematical formula in which

probabilities are associated with individual events and not merely

with   random    sequences   of   events.   Webster’s    New   Collegiate

Dictionary 95 (1981).        Bayes’ Theorem is necessary to convert

probabilities into percentages.       The formula is stated as follows:



                                    -5-
                                    or




See M. v. Marvin S., 656 N.Y.S.2d 802, 806 n.4 (Fam.Ct. 1997);

State v. Skipper, 637 A.2d 1101, 1104 (Conn. 1994).            The resulting

percentage reflects the percent likelihood that the tested male is

actually the father of the child.         The formula requires the use of

a prior probability of an event occurring.


                          The Test and the Results


     After the police collected blood samples from the mother, the

child, and the five male suspects, the samples were sent to the

University of North Texas Health Science Center at Fort Worth where

DNA tests were run.       Dr. Eisenberg testified about the results of

the tests and the resulting statistical analysis.             Initially, four

DNA regions, or loci, were tested.         Three men did not match at any

tested region.     One man matched at only one region.          Accordingly,

these four men were excluded from paternity.              The fifth man,

appellant, matched at all four tested regions.                 Dr. Eisenberg

testified   that    two    additional     genetic   regions    were   tested.

                                    -6-
Appellant matched in both, bringing the total to six matches.

Since    the    other   four      men   were    excluded,   no   statistics   were

generated on them.


        Statistics      as   to    appellant’s      results      were   generated.

Appellant’s paternity index was 14,961 (indicating he was 14,961

times more likely to be the father than a randomly selected male of

his race).      The probability of exclusion was “in excess” of 99.99%

(the test would have excluded more than 9,999 men of every 10,000

tested).       The probability of paternity was “in excess” of 99.99%

(the likelihood that appellant was the father of the child was

higher than 99.99%).           It is this third statistical figure that

appellant challenges.


                 Admissibility of the Challenged Evidence


        We are persuaded the admissibility of the challenged evidence

is controlled by the Court of Criminal Appeals’ determination in

Kelly v. State, 824 S.W.2d 568 (Tex.Cr.App. 1992).                  In Kelly, the

court delineated the standard for the admissibility of novel

scientific evidence. Before admitting such evidence, a trial court

must make the “threshold determination” as to whether the testimony

will help the fact trier understand the evidence or determine a

fact in issue.       Thus, when the trial court is faced with a proffer

of expert testimony or a scientific topic unfamiliar to lay jurors,

the trial court’s first task is to determine whether the testimony

                                          -7-
is sufficiently reliable and relevant to help the jury in reaching

accurate results.    Id. at 572.   If the trial court determines that

the proffered expert testimony is reliable (i.e., probative and

relevant),   the   trial   court   must   next   determine   whether   the

proffered testimony might nevertheless be unhelpful to the fact

triers for other reasons, such as if it is merely cumulative or

would confuse or mislead the jury, or would consume an inordinate

amount of trial time.      In essence, if the trial court determines

that the proffered expert testimony is reliable and relevant, the

court must still determine whether the probative value of the

evidence is outweighed by one or more of the factors in Rule 403 of

the Texas Rules of Evidence.1      Id.


     The Court of Criminal Appeals further explained how the

reliable prong of the test of admissibility should be met.             For

scientific evidence to be considered reliable, it must satisfy

three criteria.     First, the underlying scientific theory must be

valid.   Next, the technique applying the theory must be valid.

Finally, the technique must have been properly applied on the

occasion in question.      Id. at 573.




     1
      “Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of
cumulative evidence.” Tex. R. Evid. 403.

                                   -8-
     These three criteria must be shown by clear and convincing

evidence outside the presence of the jury.        Id.     Factors that could

affect the trial court’s determination include, but are not limited

to the following: the extent to which the underlying scientific

theory   and   technique   are    accepted   as   valid    by   the   relevant

scientific community, the qualifications of the expert testifying,

the existence of literature supporting or rejecting the underlying

scientific theory and technique, the potential rate of error in the

technique, the availability of other experts to test and evaluate

the technique, the clarity with which the underlying scientific

theory and technique can be explained to the court, and the

experience and skill of the persons who applied the technique on

the occasion in question.        Id.


     The Kelly court summarized its determination as follows:


     To summarize, under Rule 702 the proponent of novel
     scientific evidence must prove to the trial court, by
     clear and convincing evidence and outside the presence of
     the jury, that the proffered evidence is relevant. If
     the trial court is so persuaded, then the evidence should
     be admitted for the jury’s consideration, unless the
     trial court determines that the probative value of the
     evidence is outweighed by some factor identified in Rule
     403. (Emphasis added.)


When the admission of such evidence is challenged on appeal, the

question is whether the trial court abused its discretion by

admitting the evidence.




                                       -9-
       In the case before us, appellant does not challenge the

admissibility of the DNA testing, nor does he attack two of the

three statistics generated from the test results.          We note that in

Kelly, the Court of Criminal Appeals addressed for the first time

whether RFLP (restriction fragment length polymorphism) DNA testing

was admissible in a criminal trial.         Applying the newly announced

rule, the Court concluded such testing was admissible.               Id. at

574.


       In this instance, appellant challenges the probability of

paternity statistic calculated from the DNA test results.                 We

conclude that the probability of paternity statistic meets the

Kelly admissibility requirements and that the trial court did not

abuse its discretion in admitting the challenged evidence.


       The trial court conducted a hearing outside the presence of

the    jury   to   determine   the   admissibility   of   the   State’s   DNA

evidence.     The State’s expert, Dr. Arthur J. Eisenberg, testified

about the DNA evidence generally and the probability of paternity

statistic in particular. Dr. Eisenberg has a Bachelor’s of Science

in Biology, a Master’s of Science in molecular biology, and a Ph.D.

in molecular biology.          He listed a number of organizations he

belongs to involved in DNA testing or research including the

American Association of Blood Banks, the U.S. DNA Advisory Board,

and the Parentage Testing Committee. Further, he testified that he

had been involved in the field of DNA testing since its inception.

                                     -10-
Eisenberg set up and manages the DNA laboratory at the University

of North Texas at Fort Worth where the testing in this case was

performed.


     Eisenberg testified that in this case he conducted a paternity

test on five males, T.S., and the baby.      Appellant was one of those

five, and he was the only one not excluded from paternity by the

DNA testing. Eisenberg stated unequivocally that the methodologies

used for statistical analysis of the test results were “standard

methods”   employed   in   over   200,000   parentage   tests   performed

nationwide annually.


     Eisenberg explained each of the three statistics in turn. The

probability of paternity was calculated by using Bayes’ Theorem.

Bayes’ Theorem, according to Eisenberg, states that prior to the

testing, there is a prior probability of paternity.       He stated that

courts in the United States typically use a .5 or 50% prior

probability because it is a neutral probability.           The .5 prior

probability indicates that the tested male either is or is not the

father.    Eisenberg further testified that this calculation was a

generally accepted principle, and was standard methodology in

parentage testing, having been used for twenty or thirty years.2

     2
      Although parentage testing based on DNA analysis has only
been on the scene since the mid to late 1980's, a number of
methods, including Human Leukocyte Antigen (HLA) tests, have been
previously employed in paternity matters. HLA testing invokes the
same statistical calculations, including the probability of
paternity and Bayes’ Theorem. Dr. Eisenberg testified that in the

                                  -11-
       Eisenberg   further      explained        the    theory    and       methodology

involved in DNA testing generally.                     After explaining how DNA

functions   and    how    the   tests    are     conducted,      he    discussed    the

specific results in this case.           Eisenberg stated that using the .5

prior   probability,       which   was    the     standard       prior      probability

reported    in   parentage      tests,    that    appellant’s         probability    of

paternity was 99.99%. At this point, the State passed Eisenberg as

a witness, and defense counsel cross-examined him.


       On cross, Eisenberg reiterated that the prior probability of

.5 was a neutral prior probability which did not presume appellant

was guilty of the crime or more likely than not guilty.                              He

emphasized that he had personally testified in both civil and

criminal paternity matters using the same statistic invoking a .5

prior probability.        Eisenberg stated that he had testified in over

a dozen Texas criminal cases involving paternity issues where he

used the .5 prior probability.


       Most notably, Dr. Eisenberg was asked point blank whether he

saw any problem using the .5 prior probability in a criminal case,

even    assuming    the     defendant      as     presumed       to    be     innocent.

Eisenberg’s answer, twice, was “[a]bsolutely not.”                       He testified

that the .5 prior probability did not unfairly skew the probability



past several years, nearly a million paternity tests in the U.S.
were conducted using DNA or HLA methods, each using the .5 prior
probability calculation.

                                         -12-
of paternity statistic. Moreover, Eisenberg stated that if a lower

prior       probability    number      had    been    used,    like   .1,      then   the

probability of paternity statistic would have been lower, though it

would still be representative of the fact that the appellant had

matched at six genetic test sites.3                  According to Eisenberg, if a

prior probability that reflected true parentage testing had been

used,       it   would   have   been    something      higher      than   .5    and   the

probability of paternity would have been even higher than 99.99%.


        Based     on Dr. Eisenberg’s testimony, the trial court was

required to determine whether the State had shown by clear and

convincing evidence that the probability of paternity statistic

would be helpful to the trier of fact and that it was sufficiently

reliable and         relevant   to     help   the     jury    in   reaching    accurate

results.         Looking to the factors outlined in Kelly, we note that

Eisenberg testified that hundreds of thousands of DNA tests, and

millions of HLA and DNA tests around the nation reported paternity

results using Bayes’ Theorem and the probability of paternity

invoking a .5 prior probability.                These tests were conducted by

accredited testing facilities, and the statistical calculation was

“standard.”




        3
      Ultimately, there was testimony before the jury that the use
of a .01 (1%) prior probability would still generate a probability
of paternity of over 99.3% in this case.

                                         -13-
     Eisenberg testified about his qualifications in DNA paternity

testing and reported that he was involved in the field from its

inception.     He testified that the statistical calculation was

employed for twenty to thirty years in paternity tests based on HLA

blood typing and later DNA analysis.             Eisenberg commented that

there were over fifty other laboratories in the country using the

same techniques and reporting the same statistics.              He also stated

that the calculations employed in this particular test were the

“standard”    method    of    reporting     paternity   results    around      the

country.     Finally, he testified about the techniques involved in

DNA testing, his qualifications in conducting those tests, and his

experience in reporting statistics, which were “co-related” to the

DNA testing.


     Based    on   Eisenberg’s     testimony,    the    trial   court   clearly

recognized that the Bayes’ Theorem calculation was commonly used in

reporting DNA paternity results.            Moreover, it is clear that the

probability of paternity statistic is accepted in the scientific

community of molecular biology in reporting paternity results.

Eisenberg    stated    that   he   used   the   same    calculation     used    in

thousands of other tests, indicating that he properly invoked the

reporting method.      Likewise, there was no challenge that he did the

math improperly.       We conclude that this evidence was clear and

convincing in showing that the probability of paternity statistic

was valid, the technique applying the statistic was valid, and that


                                     -14-
it was properly applied in this case.                  Thus, the trial court

properly concluded that the statistic was reliable and relevant to

helping the jury reach accurate results.


     As to the second prong of the Kelly test, there was no

challenge to the evidence as being time consuming, cumulative,

confusing    or    misleading,    or   otherwise       more    prejudicial      than

probative.        The   only   challenge      raised   by     appellant   was    his

assertion that the statistic violates the presumption of innocence.


                        The Presumption of Innocence


     The presumption of innocence does not appear in the U.S. or

the Texas Constitutions.        However, courts have recognized that the

presumption of innocence is part of the 14th Amendment Due Process

and 6th Amendment right to fair trial.           Randle v. State, 826 S.W.2d

943, 945 n. 3 (Tex.Cr.App. 1992); Rogers v. State, 846 S.W.2d 883,

885 (Tex.App.--Beaumont 1993, no pet.).            Also, the Legislature has

codified the presumption of innocence in the Texas Penal Code and

the Code of Criminal Procedure.            See Tex. Penal Code Ann. § 2.01

(Vernon 1994); Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp.

1998).


     It is stated that the presumption of innocence is not a true

presumption. Normally, a presumption is an assumption of fact that

the law requires to be made from another fact or group of facts



                                       -15-
found    or    otherwise   established   in   the   action,   which    may   be

rebuttable or conclusive.        Black’s Law Dictionary, 1185 (6th ed.

1990).    A presumption acts as a burden shifting device.             Id.


     By contrast, the presumption of innocence is perhaps better

phrased the “assumption of innocence.” McCormick on Evidence § 342

at 579-80 4th ed. (1992).        It merely describes the fact that the

burden of persuasion and production in a criminal matter are on the

prosecution.      Id.    It cautions the jury to reach their conclusion

solely from the evidence adduced, and not from the fact of arrest

or indictment.          Id. citing 9 Wigmore Evidence § 2511 at 407

(Chadbourn rev. 1981).


     The presumption of innocence is not a true presumption because

the defendant is not required to come forward with proof of

innocence once evidence of guilt is introduced so as to avoid a

directed verdict of guilty.       Black’s Law Dictionary, 1186 (6th ed.

1990).    Typically, cases finding violations of the presumption of

innocence involve situations where the defendant is placed before

the jury, dressed in shackles or jail clothes, or where the State

offers evidence that the defendant has been indicted in other

crimes.       See Randle, 826 S.W.2d at 946; Lafayette v. State, 835

S.W.2d 131, 135 (Tex.App.--Texarkana 1992,             no pet.).       Clearly

neither of those situations exist here.




                                    -16-
     In   the     case    before   us,   testimony        was   elicited    from      Dr.

Eisenberg about all three statistics.               Dr. Eisenberg testified on

direct    about    probability      of    paternity       based    on   a   .5    prior

probability.       On cross, he testified about how the probability

number would change based on different prior probability values.

We conclude that the use of a probability of paternity statistic

based on Bayes’ Theorem in a criminal proceeding does not violate

the presumption of innocence.             The use of a prior probability of

.5 is a neutral assumption.              The statistic merely reflects the

application of a scientifically accepted mathematical theorem which

in turn is an expression of the expert’s opinion testimony.                       It is

subject   to    the      same   conditions      applied    to     all   other    expert

testimony.      The jury is free to disregard it.               It can be weakened

on cross and in argument.          The statistic does nothing to shift the

burden of persuasion or production in a criminal matter.


     Appellant asserts that his specific challenge is a matter of

first impression in Texas criminal cases.                 Consequently, he relies

on two cases from other jurisdictions where the courts exclude the

probability     of    paternity     calculation      as     a   violation        of   the

presumption of innocence.             While we do find cases that have

admitted DNA testing and the probability of paternity statistic, we




                                         -17-
have found no Texas criminal case in which the presumption of

innocence challenge was made or addressed.4


      The two primary cases the appellant relies on to support this

alleged violation of the presumption of innocence challenges are

State v. Hartman, 426 N.W.2d 320 (Wis. 1988) and State v. Skipper,

637 A.2d 1101 (Conn. 1994).          The rationale in Hartman and Skipper

is   that   the   probability   of    paternity   statistic   violates   the

presumption of innocence because it assumes that the putative

father had sexual intercourse with the mother; stated another way,

it assumes the crime was committed by him in order to prove that

the crime was committed by him.              Hartman, 426 N.W.2d at 326;

Skipper, 637 A.2d at 1106 (citing Hartman).           Both of these cases

come to this conclusion, at least in part, by relying on Peterson,

A Few Things You Should Know About Paternity Tests (But Were Afraid

To Ask), 22 Santa Clara L.Rev. 667 (1982).

      4
      In Lagrone v. State, 942 S.W.2d 602, 608 (Tex.Cr.App. 1997),
the Court of Criminal Appeals mentioned Dr. Eisenberg’s opinion on
the probability of paternity statistic without passing on the issue
before us. We note that the probability of paternity statistic has
been admitted in a number of jurisdictions in criminal trials prior
to this case.    However, in those cases, the statistic was not
challenged as violating the presumption of innocence. See State v.
Foster, 949 S.W.2d 215, 217 (Mo.App.E.D. 1997); State v. Pierre,
606 So.2d 816, 817-20 (La.App. 3 Cir. 1992); People v. Taylor, 460
N.W.2d 582, 585 (Mich.App. 1990); Martinez v. State, 549 So.2d 694,
696-97 (Fla.App. 5 Dist. 1989); Holley v. State, 523 So.2d 688, 689
(Fla.App. 1 Dist. 1988); State v. Smith, 735 S.W.2d 831, 833-35
(Tenn.Cr.App. 1987); State v. Thompson, 503 A.2d 689, 690-93 (Me.
1986); Bridgeman v. Commonwealth, 351 S.E.2d 598, 602-03 (Va.App.
1986); People v. Alzoubi, 479 N.E.2d 1208, 1209 (Ill.App. 3 Dist.
1985).


                                      -18-
     Additionally, the Hartman court bases its conclusion on a

single statement it made just one month earlier in In Re Paternity

of M.J.B., 425 N.W.2d 404 (Wis. 1988). In Hartman, the court said

the assumption underlying the probability of paternity statistic

was “that the mother and the putative father have engaged in sexual

intercourse      at   least   once    during     the   possible      conception.”

Hartman, 426 N.W.2d at 326 (quoting M.J.B., 425 N.W.2d at 409, in

turn citing Peterson, 22 Santa Clara L. Rev. at 685).                 For reasons

we shall explain, we do not agree that the basic assumption that

intercourse occurred is implicit in the statistic.


     Peterson’s Santa Clara Law Review article seems to be at the

root of the Hartman and Skipper decisions.              That article discusses

the use of blood tests in paternity cases, including HLA testing.

HLA testing reports the same three statistics reported in DNA

testing, and in particular in the case before us.              In that article,

Peterson criticizes the value of Bayes’ Theorem.                He states that

Bayes’ Theorem accurately reflects the odds that the accused is the

father only if one assumes “that the defendant had intercourse with

the mother and that a random man . . . also had intercourse with

her.”     Peterson, Santa Clara L.Rev. at 685.                We note that the

author of the article was himself not a statistician or geneticist,

but an attorney and professor.              We further note that the author

does not cite direct authority (either legal or scientific) to

support    his    statement.         We    disagree    with   this    conclusion.


                                          -19-
Logically, the prior probability assumes intercourse could have

occurred and thus the putative father could be the actual father,

but the statistic does not necessarily assume intercourse did

occur.


     As Dr. Eisenberg testified at the suppression hearing, the .5

prior probability is “a neutral prior probability” that indicates

“[e]ither [the putative father] is or is not the father.”                   There

was no testimony from Eisenberg or Koehler, the defense expert,

indicating     that   the   prior      probability        assumes     intercourse

necessarily occurred. The prior assumption could invoke any number

of possible conditions or permutations, as Peterson points out,

including time of intercourse, frequency, fertility, and the like.

However, by     making   the   prior    assumption    .5     (i.e.,    -   equally

weighted), Bayes’ Theorem also allows that intercourse may not have

occurred at all.


     Hartman    and   Skipper   rely     heavily     on    the   conclusion    in

Peterson’s article which we consider questionable. Moreover, it is

important to note that the Hartman court, while it quotes M.J.B. in

part, does not follow M.J.B.’s rationale. In M.J.B., the Wisconsin

Supreme Court    also stated that “the probability of paternity

statistic is conditionally relevant evidence; only after competent

evidence is offered to show that sexual intercourse between the

mother and alleged father occurred during the conceptive period may


                                    -20-
evidence of the probability of paternity statistic be received.”

In Re Paternity of M.J.B., 425 N.W.2d at 409.                 However, the

Wisconsin Supreme Court further stated:


     This foundational evidence [of intercourse] may be
     supplied by the mother herself . . . . However, we note
     that this threshold evidence is not limited to direct
     testimony by the mother that she engaged in sexual
     intercourse with the alleged father. Evidence that the
     defendant has access to the mother during the conceptive
     period may be offered by any individual knowledgeable of
     the facts of their association. By ‘access’ we mean that
     the mother and putative father were together at a time,
     under circumstances and in a location which would lead a
     reasonable person to believe that the sexual intercourse
     took place between them.

Id. (emphasis added).5


     In the case before us, there was testimony from Lubbock police

that appellant was one of the male care workers who had access to

T.S.’s dormitory.      Moreover, there was evidence that appellant

worked the late night shift, from 10:00 p.m. to 6:00 a.m.         Both the

police,   via   the   restricted   access   dormitory   log   sheets,   and

appellant   himself,    provided   evidence   that   appellant    had   the

opportunity to be alone in the dorm with T.S. and other patients

during the conceptive period; that is, he had opportunity to be

with the patients without another worker present.         Finally, it is



     5
      We note that M.J.B. is a civil paternity case. The Wisconsin
Court allowed the probability of paternity statistic primarily due
to a state statute allowing such evidence in civil paternity cases.
Nevertheless, the Hartman decision seems to depart from the
rationale in M.J.B. while relying on some of that case’s language.

                                   -21-
important to note that in this case before us, due to T.S.’s

impaired mental facility, there could not be any direct testimony

from her regarding who assaulted her.


     Three justices (of seven) dissented in Hartman.                     Justice

Steinmertz commented in his dissent on the presumption of innocence

issue.    “The 50 percent prior chance assumption does not require

shifting the burden of proof to the defendant and is not an

impermissible assumption; rather, it is part of a scientific theory

and the jury should be so told.”             Id. at 327.     He noted that the

assumption was not made in a vacuum, but was admitted only after

evidence serving       as   the    basis   for   the   statistic   was   already

admitted.     Id.    The probability of paternity statistic, Justice

Steinmertz reasoned, is truly neutral.                 It equally assumes the

defendant is not the putative father, no matter how damning the

evidence in the case.        Id. at 328.


     We     agree    with   Justice    Steinmertz’s        evaluation    of    the

statistic.      In   the    case   before    us,   there   was   evidence     that

appellant had access and opportunity to have intercourse with T.S.

The DNA test itself indicated appellant was the father of the

child.    Dr. Eisenberg testified in no uncertain terms that the

theory was used as the standard method of reporting paternity

tests.    On cross, he testified about the effect of lower prior

probabilities on the probability of paternity.               As with any other

expert testimony, the jury was free to disregard it entirely.

                                      -22-
Nothing about the statistic shifts the burden of persuasion to the

defendant.


     In contrast to Hartman, Skipper represents the strongest

denunciation by a court of the probability of paternity statistic

as violating the presumption of innocence.           637 A.2d 1101 (Conn.

1994).   There, the defendant was convicted of second degree sexual

assault.      The Connecticut Supreme Court stated “[t]he assumption

that sexual intercourse had occurred was not predicated on the

evidence in the case, but was simply an assumption made by the

expert.”      Id. at 1106.     Since Bayes’ Theorem cannot be invoked

without assuming      a prior probability of paternity, the court

reasoned that its use was inconsistent with the presumption of

innocence.     Id. at 1107.     The Connecticut Court further reasoned

that if a value presuming innocence was entered into the equation,

the value being zero, then Bayes’ Theorem would produce a 0%

probability of paternity.      Id. at 1108.    Beyond that fact that this

decision rests on Peterson’s questionable conclusion, we simply do

not agree with the Connecticut Court’s rationale.


     In this instance, five individuals were determined to have

access   to    T.S.   during   the   period   the   child   was   conceived.

Initially, there was no presumption assigned to any of these men’s

paternity.     Only after the men with access were tested, and all but

one excluded, was a prior probability employed.             At that point,

appellant was the only actual man included, and the statistic

                                     -23-
presumes either he or a random man could have been the father.

Thus, the .5 prior probability accurately represents that he either

is or is not the father.


     Moreover, the presumption of innocence cannot require us to

enter a prior probability of zero into Bayes’ Theorem as suggested

by the Connecticut Court. A zero prior probability does not simply

presume a defendant is innocent.         Rather, a zero probability, in

fact presumes that it was impossible for the defendant to be the

father.6   When a zero prior probability is plugged into Bayes’

Theorem (the formula), naturally the probability of paternity

results becomes 0%.     The presumption of innocence does not require

a jury to assume it was impossible for a defendant to commit the

crime charged.    Rather, it requires the jury to assume as a

starting proposition that the defendant did not commit the crime,

until proven otherwise.       The probability of paternity, as Dr.

Eisenberg testified, is merely a way of expressing and interpreting

the actual DNA test results.       Thus, the statistic itself does

nothing to shift the burden of going ahead to the defendant.


     Finally, appellant cites a third case,        State v. Spann, 617

A.2d 247 (N.J. 1993).    There the New Jersey Supreme Court held that

where the clear impression was given to the jury that the 50% prior

probability was a scientific assumption, the admission of the

     6
      Likewise, a prior probability of 1 (or 100%) would assume
that no one else but the accused could have been the father.

                                  -24-
probability of paternity statistic was reversible error.7            Id. at

253.       In Spann, there was no explanation to the jury about how the

evidence in the case might affect the prior probability, and how

that would in turn affect the probability of paternity statistic.

The court reasoned that a jury should use its own estimate of the

prior probability of paternity, and not rely on the expert’s

assumption of the defendant’s access to the woman.            Id. at 254.


       We note that the New Jersey Court did not conclude that the

probability of paternity statistic violated the presumption of

innocence.      In fact, the court discussed a number of issues to help

guide attorneys and courts in deciding whether the statistic would

be admissible in any given case.               Id. at 257-60.     The court

referred      to   concepts   of   general   acceptance,   reliability,   and

usefulness for the jury.            Id. at 258.    Ultimately, for future

cases, the New Jersey Court left the determination of admissibility

of the probability of paternity statistic to the trial court,

implying that they found no interference with the presumption of

innocence.         Moreover, the Spann Court       expressly rejected the

suggestion that the Wisconsin Supreme Court arrived at in M.J.B.,

i.e., that intercourse must be proven before the probability of

paternity statistic can be admitted.           Id. at 261.   The New Jersey

Supreme Court stated that “[t]he calculation - Bayes’ Theorem - if

       7
      This case involved Human Leukocyte Antigen (HLA) testing
rather than DNA testing, but Bayes’ Theorem is used to calculate
probability of paternity in both tests.

                                      -25-
valid, does not depend on any particular degree of confidence in

the fact of intercourse.”       Id.


     The presumption of innocence places the burden on the State to

move forward    and    prove   that    the    defendant    committed    all   the

elements of the crime beyond a reasonable doubt.                   In a sexual

assault case, one element the State must show is that the defendant

caused “the penetration of the . . . female sexual organ . . .” of

the victim.    Tex. Penal Code Ann. § 22.011(a)(1)(A)(Vernon Supp.

1998).   While    it    is   true   that     the    probability   of   paternity

statistic presumes that the defendant could have had intercourse

with the mother of the child, it does not assume that he did have

intercourse. As Dr. Eisenberg testified, a prior probability of .5

assumes that the defendant is just as not likely the father of the

child as it assumes he is the father.              Moreover, even if the prior

probability was .9, strongly presuming that he was the father, it

still does not conclusively establish, or presume or assume he had

intercourse with the woman.         This is a matter for the jury based on

all the evidence in the case, which could include no access,

impotence, vasectomy and other similar matters.


     The Indiana Court of Appeals, over an objection that Bayes’

Theorem violated the presumption of innocence, expressly concluded

that the probability of paternity statistic was admissible in a

criminal trial.        In Davis v. State, a husband and wife were



                                      -26-
convicted of neglect of a dependant.            Their baby was abandoned on

the side of a gravel road within hours of its birth.                 Using HLA

testing and Bayes’ Theorem, the State showed that the Davis’s were

the parents of the abandoned child.               On appeal, the parents

contended    that    Bayes’   Theorem     violated    the   presumption         of

innocence.


     In Davis, one element the State had to prove was that the

abandoned child belonged to the defendants. Using parentage tests,

the State was able to link the defendants to the child in order to

prove that they had committed the crime charged.                   In the case

before us, the State has also used parentage tests to link the

defendant with the crime charged.         The issue in Davis was whether

Bayes’ Theorem could be used in a criminal case to show parentage.

The Indiana appellate court determined that the .5 probability

invoked in Bayes’ Theorem was a neutral consideration and that the

probability of parentage statistic was admissible.                Id. at 138.


     In this instance, we conclude that probability of parentage

statistic is admissible under Kelly v. State, supra, and that its

admissibility   under    Kelly   does     not    violate    the    appellant’s

presumption of innocence.        Appellant’s first point of error is

overruled.


                    Appellant’s Second Point of Error




                                   -27-
      In the alternative to his first point of error, appellant

claims in his second point that the trial court erred by admitting

the   probability      of   paternity    statistic        because    there    was    no

testimony regarding the mathematical applications of the test

results of the probability of paternity testing                      using Bayes’

Theorem.      Under the point, appellant, in essence claims that as a

condition     of   admissibility,     the      State    is   required    to   call    a

mathematical expert to comment on the possible interpretations of

the statistical evidence.        We disagree.          Rule 702 and Kelly make no

such requirement for the admission of the scientific evidence in

question.


      To support his position, appellant points out that where

Bayes’ Theorem has been permitted, some courts require certain

precautionary conditions be met before allowing the evidence.

Particularly, he points to Spann v. New Jersey, 617 A.2d at 264.

While the New Jersey Supreme Court indicated that it might be

necessary     to   have     expert   testimony     from      a   geneticist   and     a

mathematician in order to allow Bayes’ Theorem evidence at trial,

we note that the court was reviewing admissibility of evidence

under its own state standard.             As we have previously discussed

above,   in    Texas   the    admissibility       of    scientific      evidence     is

governed by Rule 702 of the Texas Rules of Evidence and the




                                        -28-
standard laid out in Kelly.8        Again, we are convinced that the

statistical evidence presented in this case satisfied that test.


     The record contains testimony from Dr. Eisenberg addressing

the relevance and reliability of the probability of paternity

statistic.     In the hearing on the motion to suppress, he testified

about his extensive credentials and expertise in the field of

molecular biology as applied to genetic testing. He testified that

the methodologies employed in the DNA testing were standard,

including the statistical calculations that were used to interpret

the test results.     Specifically, he testified that use of the .5

prior probability was standard in parentage testing, and that it

was a neutral factor since it did not “give any weight to either

side” on the issue of paternity.          Dr. Eisenberg testified before

the jury that if the prior probability in the calculation were

reduced   to   .01   (1%),   reflecting    a    very   low   assumption   that

appellant was the father, the probability of paternity was still

“in excess of 99 percent.”       Finally, he testified that the tests

run in this case were run twice in order to verify the results and

rule out the possibility of errors.            In light of this testimony,




     8
      At the time of trial, the Texas Rules of Criminal Evidence
and Texas Rules of Civil Evidence were still separate. As of March
1, 1998, these rules have been consolidated. While the new rules
technically do not apply to this matter, we note that the current
Rule 702 is identical to the old Rule 702 under the Criminal Rules.

                                   -29-
the trial court was within its discretion to admit the probability

of paternity statistic under the Kelly test.9


     Even assuming arguendo that the probability of paternity

statistic was improperly admitted, we conclude that such error was

harmless.   The defense had the opportunity to cross examine Dr.

Eisenberg on the use of the prior probability.      By cross, the

defense pointed out to the jury the nature of the probability of

paternity statistic and how it could be misleading.    The defense

did not question the other two statistics at all.   Based on other

evidence that appellant had access to T.S., that he had opportunity

to be alone with her, that he knew she could not consent to sexual

intercourse, that appellant matched on all six regions of DNA loci

tested, that the test included him while excluding 99.99% of the

male population of his race, and that his paternity index made him

nearly 15,000 times more likely than the random man to be the

father of T.S.’s child, we conclude beyond a reasonable doubt that

the admission of the probability of paternity, even if error, made


     9
      Although we conclude that the statistical evidence was
properly admitted, it is worth noting that the statistics merely
reinforce the truly damning evidence in this case - the DNA test
itself. Eisenberg testified that only the biological father or his
identical twin would match the child’s DNA at every site tested.
Appellant himself testified that he did not have an identical twin.
Eisenberg stated that based on the DNA test, it was his opinion
that appellant was the father of the child, barring a first order
relative (i.e. brothers or father) or an identical twin.         As
between first order relatives, appellant was 64 times more likely
to be the father. Here, the test results speak for themselves.
Appellant matched at all six genetic sites tested.

                               -30-
no contribution to the conviction.10        Appellant’s second point of

error is overruled.


                   Appellant’s Third Point of Error


     In his third point of error, appellant claims the trial court

erred by overruling his motion to set aside the verdict and

judgment rendered against him and grant him a new trial because the

prosecution knowingly introduced inadmissible evidence clearly

calculated to inflame the minds of the jurors against him.               We

disagree.


     The     complained   of   statements   came   from   Janice   Robinson,

another state school employee. The State’s attorney asked Robinson

if she was aware of a statement made by the appellant that the

female clients of the State School were “easy” or that they “wanted

sex.”     Robinson answered the question affirmatively before defense

counsel objected. Upon objection, the court held a hearing outside

the presence of the jury.        The court denied the defense’s motion

for mistrial based on prosecutorial misconduct, then sustained the

objection.    The jury was brought back in, and the court ordered the

jury to disregard the question and the answer.                 In essence,


     10
      Appellant waived his right to remain silent, and took the
stand voluntarily.    On cross, he conceded that there was a
“possibility” that he had time alone with T.S., he knew T.S. was
“very retarded” and she “probably” couldn’t understand the nature
of sexual contact or activity, and that he could not explain why
the DNA test results came out as they did.

                                    -31-
appellant contends that in offering the statement, the prosecution

committed prosecutorial misconduct which constitutes reversible

error.     Again, we reiterate our disagreement.


      The decision to grant or deny a motion for new trial is within

the discretion of the trial court, and appellate courts will not

reverse such decisions absent an abuse of discretion.                     State v.

Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App. 1993).                       Moreover,

error     in   asking   an   improper    question        or   admitting    improper

testimony may generally be cured by an instruction to disregard.

Livingston v. State, 739 S.W.2d 311, 335 (Tex.Cr.App. 1987).                     An

exception to this rule exists where it appears that the question or

answer is clearly calculated to inflame the minds of the jurors and

is   of   such   a   character   as     to     suggest    the   impossibility    of

withdrawing the impression produced on their minds. Kemp v. State,

846 S.W.2d 289, 308 (Tex.Cr.App. 1992).              The issue is whether the

jury was so affected by the question that they were unable to

disregard it as instructed.        Huffman v. State, 746 S.W.2d 212, 218

(Tex.Cr.App. 1988).


        Even if we concluded the question was calculated to inflame

the minds of the jury, we cannot conclude that the question or

answer was of such a character as to suggest the impossibility of

withdrawing the impression produced on the jurors’ minds.                        At

worst, the question placed before the jury the idea that the

appellant may have made some statement indicating he thought the

                                        -32-
female clients at the state school were seductive or sexually

aggressive.   There was nothing in the offered statement indicating

appellant actually had sexual intercourse with the female clients.

The   question   and   answer   did    not    suggest    that    appellant      had

confessed guilt where the appellant was denying guilt at trial.

See Ladd v. State, 629 S.W.2d 139 (Tex.App.--Dallas 1982, pet.

ref’d).


      Assuming   without   deciding     that    the    evidence     offered     was

inadmissible, we conclude beyond a reasonable doubt that any error

was cured and otherwise rendered harmless by the trial court’s

instruction   to   disregard.         The    trial    court   did   not   err    in

overruling appellant’s motion for new trial.                    Accordingly, we

overrule appellant’s third point of error.




      In conclusion, we overrule appellant’s three points of error

and affirm the judgment of the trial court.



                                             Carlton B. Dodson
                                                  Justice

Quinn, J., concurring



Publish.   Tex. R. App. 47.4.

                                      -33-
