                                                        February 19, 2015
                     No. PD-1564-14

                     IN THE
           COURT OF CRIMINAL APPEALS
                   OF TEXAS

               LESTER RAY GUY
                        Petitioner

                            v.

                   The State of Texas
                      Respondent

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



Petition for Discretionary Review
                      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
                                                       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 in failing to find that the test relied
                    upon failed to meet the standards of Daubert/ Kelly for
                    reliability to be admissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8


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

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




                                                                      i
                                     Certificate of Parties

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

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

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

                                           Petitioner

                                       Lester Ray Guy
                                     TDCJ-ID No. 297393
                                        Clements Unit
                                        9601 Spur 591
                                      Amarillo, TX 79102

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

                                        State of Texas

                                     Rosemary Lehmberg
                                       P.O. Box 1748
                                      Austin, TX 78767


Appellate Counsel:                               Trial Counsel:
Scott Talliaferro
                                                 Jim Young
State Prosecuting Attorney                       Matt Foye
Lisa C. McMinn




                                                ii
                                        Index of Authorities


Federal Cases:

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




Texas Cases:

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

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

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

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




                                                   iii
                           Statement Regarding Oral Argument

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




                                   Statement of the Case

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

case:

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




                             Statement of Procedural History

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

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

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

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




                                              iv
                                   Grounds for Review

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

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

2)    The appellate court erred in failing to find that the test relied upon failed
      to meet the standards of Daubert/ Kelly for reliability to be admissible.




                                             v
                                     No. PD-1564-14

                                     IN THE
                           COURT OF CRIMINAL APPEALS
                                   OF TEXAS

                               LESTER RAY GUY
                                        Petitioner

                                            v.

                                   The State of Texas
                                      Respondent

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




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

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

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

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




                                            1
                                           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.




                                                2
      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

                                               3
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

                                                4
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

                                                5
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.

                                                6
      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




                                               7
2)     The appellate court erred in failing to find that the test relied upon failed
       to meet the standards of Daubert/ Kelly for reliability to be admissible.

       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,



                                                8
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.




                                                 9
       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.




                                               10
                                             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




                                                11
                               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




                                            12
APPENDIX
Guy v. State, Not Reported in S.W.3d (2014)




                                                              cause to charge appellant. In 2012, the case was tried
                                                              to a jury, which found appellant guilty. The court
               2014 WL 5423760
 Only the Westlaw citation is currently available.            sentenced appellant to life imprisonment, consecutive
                                                              to the life sentence he is currently serving for an
 SEE TX R RAP RULE 47.2 FOR DESIGNATION                       unrelated offense. Guy appeals his conviction in nine
        AND SIGNING OF OPINIONS.                              issues. For the reasons that follow, we affirm his
                                                              conviction and punishment.
           MEMORANDUM OPINION
                DO NOT PUBLISH
         Court of Appeals of Texas, Austin.
                                                              Factual and Procedural Background
                                                              Sixty-six-year-old Ivy was found dead in her apartment
          Lester Ray Guy, Appellant                           on September 15, 1978. At trial, the Travis County
                       v.                                     medical examiner testified that he performed an
         The State of Texas, Appellee                         autopsy on Ivy's body and determined that she had
   NO. 03–12–00466–CR | Filed: October 22,                    been raped and killed by asphyxiation, possibly by
                     2014                                     smothering with a pillow. The medical examiner also
                                                              testified that he had taken two smears from Ivy's vagina
                                                              and affixed them to laboratory slides for examination.1
                                                              He found sperm on the slides, shared his findings with
                                                              the police department, and stored the slides in the
FROM THE DISTRICT COURT OF TRAVIS                             medical examiner's offices. Evidence showed that
COUNTY, 331ST JUDICIAL DISTRICT, NO.                          several items of physical evidence were also collected
D– 1 – DC– 1 0 – 3 02548, HONORABLE DAV ID                    at the crime scene, including sheets from the bed where
CRAIN, JUDGE PRESIDING                                        Ivy was found.

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

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


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

                                                          1
Guy v. State, Not Reported in S.W.3d (2014)




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

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


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

                                                             2
Guy v. State, Not Reported in S.W.3d (2014)




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


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




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

                                                                     Appellant's second issue argues that the trial court
*5 The jury was free to assign weight to these various               erred in denying his motion to suppress evidence in the
expert opinions, as issues of credibility and weight of              form of the drinking straw that he left behind in the
the evidence lie exclusively within the province of the              police car. We review a trial court's ruling on a motion
jury. See Brooks v. State, 323 S.W.3d 893, 911–13                    to suppress evidence for abuse of discretion, viewing
(Tex.Crim.App.2010) (direct-appeal courts are not                    the facts in the light most favorable to the trial court's
permitted to act as “thirteenth juror”). We conclude                 decision. Shepherd v. State, 273 S.W.3d 681, 684
that the record contains sufficient evidence to support              (Tex.Crim.App.2008). W e give “almost total
appellant's conviction based on the mini-STR test and                deference” to the trial court's express or implied
its interpretation.                                                  determination of historical facts and review de novo its
                                                                     application of the law of search and seizure to those
                                                                     facts. Id.
With respect to DPS employee Molina's Vagina 1 DNA
test, appellant cites evidence in the form of Defense
Exhibit 1 (a table generated by Molina indicating which              *6 Appellant argues that he had a legitimate
alleles were present at each locus) identifying alleles at           expectation of privacy in his DNA and that the State
two loci (one of which was the FGA) that are                         violated this by seizing his fast-food trash without his
inconsistent with appellant's DNA profile. However,                  consent. See Villarreal v. State, 935 S.W.2d 134, 138
neither appellant nor the State specifically questioned              (Tex.Crim.App.1996) (en banc) (burden of establishing
Molina about that exhibit and its alleged conclusiveness             legitimate expectation of privacy rests on defendant).
that appellant could not have been the perpetrator.                  However, the trial court could reasonably have found
And, despite Defense Exhibit 1, Molina stated at least               that appellant had no legitimate expectation of privacy
twice in his testimony that appellant, in fact, could not            in this instance because he was incarcerated at the time,
be excluded as the contributor of the sperm found                    and prisoners have greatly diminished privacy rights
inside the victim. Moreover, every other witness who                 and no legitimate expectation that their DNA will
t e s t i fi e d a b o u t t h e v a r i o u s D N A t e s t s       remain private. See Oles v. State, 993 S.W.2d 103, 108
performed—including appellant's own expert, Dr.                      (Tex.Crim.App.1999) (lowered expectation of privacy
Mueller—similarly concluded that appellant could not                 exists in arrest and detainment situations); Pollard v.
be excluded by virtue of any of the test results,                    State, 392 S.W.3d 785, 797 (Tex.App.—Waco 2012,
including the original Molina test.                                  pet. ref'd) (“[C]ollection of DNA from prisoners has
                                                                     been found to be reasonable in light of an inmate's
                                                                     diminished privacy rights, the minimal intrusion
Furthermore, several witnesses (including Dr. Mueller)               involved, and the legitimate government interest in
provided an explanation of the alleged “two-loci                     using DNA to investigate crime.”); see also Tex. Gov't
mismatch” between appellant's DNA and the DNA                        Code § 411.148 (specifically authorizing collection of
recovered from the Vagina 1 slide that the jury could                DNA from prisoners); Velasquez v. Woods, 329 F.3d
have found credible: because the quantity of biological              420, 421 (5th Cir.2003) (collection of DNA samples
material tested was both very small and very old and                 from felons does not violate Fourth Amendment). Not
degraded, there was likely “allelic dropout” at those                only was appellant incarcerated and therefore lawfully


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




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


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




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


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




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


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




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


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




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

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


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

                                                            9
Guy v. State, Not Reported in S.W.3d (2014)




Footnotes

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

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

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

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

5     Appellant is African–American.


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

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

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


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

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

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




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

                                                              10
Guy v. State, Not Reported in S.W.3d (2014)




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

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




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  Case # PD­1564­14
   Case Information
   Location                                      Court Of Criminal Appeals
   Date Filed                                    02/17/2015 06:35:42 PM
   Case Number                                   PD­1564­14
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   Attorney                                      Ariel Payan
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   eService Details
                                                                                                                     Date/Time
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   Scott Taliaferro                                                                                                  02/17/2015
                                                      EServe                                       Sent     Yes
   scott.taliaferro@co.travis.tx.us                                                                                  06:47:43 PM
   Lisa McMinn                      State Prosecuting                                                                02/18/2015
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   Lisa.McMinn@spa.texas.gov Attorney                                                                                08:33:32 AM




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