                              NUMBER 13-09-00037-CR

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


ELIJAH NEIGHBORS,                                                                 Appellant,

                                              v.

THE STATE OF TEXAS,                                                               Appellee.


                     On appeal from the 377th District Court
                           of Victoria County, Texas.


                            MEMORANDUM OPINION

      Before Chief Justice Valdez and Justices Benavides and Vela
              Memorandum Opinion by Chief Justice Valdez

       A jury found appellant, Elijah Neighbors, guilty of aggravated sexual assault of a

child, a first-degree felony. See TEX . PENAL CODE ANN . §22.021(a)(1)(B)(i), (a)(2)(B)

(Vernon Supp. 2009). The trial court concluded that Neighbors had previously been

convicted of sexual assault and imposed a mandatory life sentence.                  See id. §

12.42(c)(2)(A)(i), (c)(2)(B)(ii) (Vernon Supp. 2009). By two issues, Neighbors contends

that: (1) the trial court erred in excluding expert testimony; and (2) the evidence is factually
insufficient to support his conviction. We affirm.

                                               I. BACKGROUND

A.      A.L.’s Testimony

        A.L. testified that on March 31, 2007, she visited her fifteen-year-old boyfriend, C.D.1

Sometime that afternoon, A.L. saw Neighbors, the stepfather of A.L.’s friend, G.C., and

asked him if she could go to his house. Neighbors agreed and drove twelve-year old A.L.

to Neighbors’s home. A.L. sat in the living room and visited with G.C. and her three

younger siblings until G.C. received a phone call and went to the movies. A.L. testified that

after G.C. left, she and Neighbors “started talking and he told me that I looked sexy eating

popsicles” and “sexy the way I walk.” A.L. stated that Neighbors started drinking and told

her that he “wishe[d] he was 12 again and he could show me what real love is like.” A.L.

testified that Neighbors then asked if he could have sex with her and told her that they

could “go to the room.” A.L. testified that she was scared and “surrendered and followed”

Neighbors to a back bedroom.

        A.L. testified that once inside the bedroom, Neighbors instructed her to “take [her]

clothes off and bend over.” A.L. took off her pants and panties, and Neighbors removed

his pants and underwear. A.L. bent over and Neighbors inserted his erect penis into her

vagina. Neighbors then “started moving” in and out of her. A.L. stated that she tried to pull

away from him but he “jerk[ed]” and “pull[ed]” her back with such force that her stomach

and sides later hurt. A.L. testified that the encounter lasted for five to ten minutes and

ended when Neighbors ejaculated “inside” of her. Neighbors warned A.L. not to tell

anyone and offered to pay her and introduce her to a friend that was her age. Neighbors

        1
           Although the com plainant’s identity was not concealed at trial, given the nature of the case, on
appeal we will use only her initials, the initials of her m other and m other’s boyfriend, and the initials of other
juveniles involved.

                                                         2
then drove A.L. to her friend P.C.’s house.

       A.L. testified that she did not tell anyone at P.C.’s house about what had happened

because she “didn’t feel comfortable telling them something like that.” A.L. spent the night

at P.C.’s house, and her mother’s boyfriend, J.P., picked her up and drove her to home the

next day. On the ride home, A.L. told J.P. what happened, and once home, J.P. told her

mother, M.L. M.L. “went straight to the phone” and then told A.L. to change her panties.

M.L. placed the panties that A.L had been wearing into a plastic bag and took A.L. to the

hospital.

       At the time of trial, A.L. was fourteen years old and visibly pregnant. A.L. testified

that her encounter with Neighbors was neither her first nor her most recent sexual

experience. A.L. explained that her grandfather was currently in prison for exposing

himself to her and her sisters four years earlier. A.L. denied having sex with her boyfriend,

C.D.; however, she later admitted that she had engaged in sexual intercourse with C.D. on

the same day as her alleged encounter with Neighbors. A.L. also testified that, at the time

of trial, she was pregnant with the child of another boyfriend.

       On cross-examination, A.L. stated that although she visited the hospital on March

31, there was no nurse on duty to examine her so she went home and bathed before

returning for an examination three days later. A.L. admitted that she did not always tell her

mother where she spent the night and that she had stayed places without her mother’s

permission. A.L. also gave conflicting testimony regarding the date that she arrived at

C.D.’s house. However, on re-cross examination, A.L. admitted that her mother dropped

her off at C.D.’s house on March 30, and that she spent the night and had unprotected sex

with C.D. twice during her visit—once on the night of March 30 and once on the morning

of March 31.

                                              3
B.     J.P.’s and M.L.’s Testimony

       J.P. testified that he picked up A.L. from P.C.’s house on April 1. On the drive

home, J.P. noticed that A.L. appeared “kind of nervous, fidgety” and then told him what had

happened at Neighbors’s house the day before. On cross-examination, J.P. testified that

he had not observed any bruising or injuries on A.L. J.P. also acknowledged that A.L was

not always truthful about where she stayed at night and that A.L. no longer lived with him

and M.L because she “would act out” when she “didn’t get to do what she wanted to do.”

       The jury then heard testimony from M.L. M.L. testified that A.L. complained that her

stomach and sides hurt when she returned home from P.C.’s house. A.L. then told M.L

that Neighbors “made her” have sex with him and that “they [A.L. and Neighbors] were

sitting on the couch and he told her that he wanted to show her what real love is and how

much that she turned him on.” A.L. told M.L. that later, in another room, Neighbors told her

to pull her pants down and then “[h]e bent her over and he did it from behind in her vagina.”

       After A.L. described the encounter, M.L. called the police and was instructed to take

A.L., as well as the panties that A.L. had worn at the time of the encounter, to the hospital.

M.L. stated that at the emergency room she turned over A.L.’s panties to the police. M.L.

testified that the hospital staff checked A.L.’s vital signs and scheduled a Sexual Assault

Nurse Examiner (“SANE”) examination that was performed the following day.

       On cross-examination, M.L. testified that she was not aware that A.L. and C.D. were

sexually active when she dropped A.L. off at C.D.’s house on March 30. She also testified

that A.L. never lied about where she was going to stay and was always truthful about her

sexual activity. However, M.L. admitted that A.L. did not tell her that she had engaged in

sexual intercourse with C.D. on the same day as her alleged sexual encounter with



                                              4
Neighbors.

C.     Esther Vasquez’s Testimony

       The SANE examination was conducted by nurse Esther Vasquez on April 2.

Vasquez testified that A.L. had no complaints of pain. However, upon examination,

Vasquez detected “clefts and notches at the seven o’clock and three o’clock positions of

the hymen” and “three tears that were half a millimeter in length on the posterior fourchette,

which is the area between the rectum and the vagina.” Vasquez testified that these injuries

were consistent with both the type of action and sexual position that A.L. alleged that

Neighbors had employed.

       On cross-examination, Vasquez testified that when she asked A.L. when she had

engaged in her most recent sexual contact with a male prior to the alleged assault, A.L.

responded, “Three weeks.” Vasquez also testified that A.L.’s injuries indicated that “sexual

intercourse had taken place,” and that nothing on A.L.’s body surface, like bruises, cuts or

abrasions, indicated that A.L. had been assaulted.

D.     Thurmond Marshall’s Testimony

       Investigator Thurmond Marshall of the Victoria County Sheriff’s Department testified

that he spoke to Neighbors shortly after April 1, and informed him of A.L.’s allegations.

Neighbors told Investigator Marshall that A.L. had come to his house on the day in

question, but was picked up from his home by “a bunch of Hispanic boys” shortly after G.C.

went to the movies. However, at a later interview, Neighbors told Investigator Marshall that

he did not know when A.L. left his home. On April 5, Investigator Marshall spoke with

Neighbors and asked him about these inconsistent statements. At that point, Neighbors

told Investigator Marshall that after G.C. went to the movies, he gave A.L. a ride to Victoria.


                                              5
Neighbors also told the investigator that G.C. had told him to stay away from A.L., and that

A.L. had snuck out of his house when she had spent the night with G.C. in the past.

Neighbors also stated that his DNA would not be found on A.L. or her clothing, but he

refused to submit to DNA testing.

E.      Forensic Evidence

        Cynthia Morales, a forensic scientist with the Department of Public Safety Crime Lab

in Corpus Christi (“DPS lab”), testified that she ran an analysis of DNA collected from a

semen stain found on the panties worn by A.L. on March 31. The semen stain was treated

as a “mixture sample” because it contained the DNA of more than one individual. Morales

stated that it was common to have a mixture in a sexual assault case. In order to collect

DNA from the semen stain, Morales isolated epithelial cell DNA, “which is usually

attributable to the victim,” from the sperm cell DNA, which is attributable to males. Morales

then analyzed alleles at fifteen locations in the DNA and compiled a DNA profile based on

her findings.2 Morales entered the DNA profile into a computer database to determine if

anyone in the database contributed to the sample gathered from A.L.’s panties.

        Lisa Harmon Baylor, also a forensic scientist with the DPS lab, testified that the

computer identified Neighbors as a match. Baylor contacted the Victoria County Sheriff’s

Department and obtained an additional DNA sample from Neighbors, which she compared

to the profile obtained from A.L.’s panties. Baylor testified that Neighbors could not be

excluded as a contributor of the sperm cell fraction and that the probability of randomly

selecting an unrelated person as the source of the profile was 1 in 2.848 billion for African


        2
           An allele is defined as “[a]ny one of two or m ore genes that occupy the sam e location on
hom ologous chrom osom es and determ ine the heredity of a particular trait.” IDA G. D OX ET AL ., A TTOR NEY ’S
ILLU STR ATED M ED IC AL D IC TIO NAR Y A24 (1997).



                                                       6
Americans. Baylor stated that there was no strong indication that an additional male

contributed to the sample of DNA gathered from A.L.’s panties. However, Baylor later

testified that even if there had been a third contributor, the probability that Neighbors was

a contributor would remain unchanged. On-cross examination, Baylor stated that, based

on the probability previously provided, she was able to conclude that Neighbors could not

be excluded as a possible contributor to the sample of DNA gathered from A.L.’s panties;

however, because the semen stain was a “mixture sample,” the probability was not high

enough to say “within a reasonable degree of scientific certainty” that Neighbors was the

source.

       Dr. Richard Gunasekera, the defense’s expert witness, testified that DNA results

usually do not indicate that a person “definitely” committed a crime because the DNA of

every human being is “99.9 percent the same.” He also explained that a deposit of semen

does not necessarily prove that an aggravated sexual assault occurred. Dr. Gunasekera

stated that a “mixture sample” that is not separated correctly can affect the reliability of the

results obtained. Dr. Gunasekera then explained that when multiple contributors have

similar alleles, it is difficult to “see the difference” and establish DNA profiles. Moreover,

Dr. Gunasekera testified that the presence of a third, unknown contributor could lower the

reliability of the results obtained from the sample. On cross-examination, Dr. Gunasekera

stated that he had not conducted a test of the biological sample obtained from A.L.’s

panties.

                                  II. FACTUAL SUFFICIENCY

A.     Standard of Review and Applicable Law

       When conducting a factual sufficiency review, we view all of the evidence in a



                                               7
neutral light. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We will set

aside the verdict only if (1) the evidence supporting the conviction is too weak to support

the verdict, or (2) when the evidence supporting the verdict is outweighed by the great

weight and preponderance of the contrary evidence so as to render the verdict clearly

wrong and manifestly unjust. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009)

(citing Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)); Grotti v. State,

273 S.W.3d 273, 283 (Tex. Crim. App. 2008).

       Both legal and factual sufficiency are measured by the elements of the offense as

defined by a hypothetically correct jury charge. Curry v. State, 30 S.W.3d 394, 404 (Tex.

Crim. App. 2000); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet.

ref’d). A person commits aggravated sexual assault of a child when he intentionally or

knowingly causes the penetration of the sexual organ or anus of the child by any means.

See TEX . PENAL CODE ANN . § 22.021(a)(1)(B)(i), (a)(2)(B). A person acts intentionally with

respect to a result of his conduct when it is his conscious objective or desire to engage in

the conduct or cause the result; a person acts knowingly with respect to a result of his

conduct when he is aware that his conduct is reasonably certain to cause the result. Id.

§ 6.03(a), (b) (Vernon 2003).

B.     Analysis

       In his second issue, Neighbors contends that the evidence was factually insufficient

given “the weakness of the State’s overall case and lack of physical evidence in this

matter” and A.L.’s “lack of credibility.” We disagree.

       The jury heard testimony that DNA analyses of a stain found on A.L.’s panties

revealed that Neighbors could not be excluded as a contributor to the stain and that,



                                             8
although the analysis did not confirm to a reasonable degree of scientific certainty that

Neighbors was the source of the DNA, the probability of randomly selecting an unrelated

person as the source of the profile was 1 in 2.848 billion for African Americans. Baylor

testified that DNA analysis revealed an “extra allele” that did not belong to A.L. or

Neighbors. Baylor explained that the “extra allele” potentially indicted the presence of a

third contributor; however, she stated that there was no strong indication that an additional

male contributed to the sample of DNA gathered from A.L.’s panties. Baylor also testified

that even if there had been a third contributor, the probability that Neighbors was a

contributor would remain unchanged. On the other hand, defense expert, Dr. Gunasekera,

testified that the possibility of a third contributor would lower the reliability of the result

reached by the DPS lab.

       Even disregarding the physical evidence presented, the evidence was factually

sufficient to support the jury’s verdict. The testimony of a child victim is alone sufficient to

support a conviction for aggravated sexual assault. TEX . CODE CRIM . PROC . ANN . art. 38.07

(Vernon 2005); see Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978). A.L.

testified that when she was twelve years old, Neighbors made sexually-related comments

to her, including asking her if she would have sex with him, which scared her into

compliance. A.L. testified about the details of a sexual encounter that involved Neighbors

inserting his erect penis into her vagina and ejaculating inside her. Moreover, A.L.’s

testimony was corroborated by the testimony of M.L.

       Despite Neighbors’s argument regarding the weakness of the State’s case and lack

of physical evidence, Neighbors focuses his factual sufficiency argument on A.L.’s

credibility. Specifically, Neighbors argues that A.L. “was untruthful with her parents about



                                               9
where she was going and her sexual activity because she wanted to avoid getting in

trouble; she was untruthful with the State at trial arguably to keep her boyfriend, [C.D.], out

of trouble, and she was untruthful with the SANE examiner for some untold reason.”

During direct examination, A.L. testified that at the time of the alleged sexual assault by

Neighbors, she had not engaged in any sexual related activity with C.D. After the State

reminded A.L. that her testimony was inconsistent with a prior statement that she had

given, A.L. admitted that she had engaged in sexual intercourse with C.D. prior to, but on

the same day as, the alleged sexual assault. The jury also heard testimony that A.L. did

not tell the SANE nurse that she had engaged in sexual activity with C.D. on the day in

question. Moreover, A.L. admitted that she had stayed places without her mother’s

permission and had not always been truthful about where she spent the night.

       Although the evidence calls A.L.’s credibility into question, it is the jury’s sole

responsibility to judge the credibility of witnesses, and the jury is free to believe or to

disbelieve any portion of a witness’s testimony. Cain v. State, 958 S.W.2d 404, 408-09

(Tex. Crim. App. 1997); Ortega v. State, 207 S.W.3d 911, 920 (Tex. App.–Corpus Christi

2006, no pet.); see also Ortiz v. State, No. 13-05-696-CR, 2006 WL 1644600, at *2 (Tex.

App.–Corpus Christi June 15, 2006, no pet.) (deferring to the jury’s role as fact finder

where the jury was “presented with testimony that could have called the victim’s credibility

into question”).

       Viewing the entire record in a neutral light, we cannot say that the jury’s verdict is

too weak to support the fact finder’s verdict, manifestly unjust, or against the great weight

and preponderance of the evidence. See Laster, 275 S.W.3d at 518. Accordingly, we

conclude that the evidence supporting Neighbors’s conviction is factually sufficient. See



                                              10
Grotti, 273 S.W.3d at 283. We overrule Neighbors’s second issue.

                                   III. EXPERT TESTIMONY

       In his first issue, Neighbors contends that the trial court abused its discretion in

“limiting and/or excluding” Dr. Gunasekera’s testimony because it “erroneously applied

Texas Code of Criminal Procedure [article] 38.35 to exclude Dr. Gunasekera’s testimony

regarding his findings, opinions and conclusions after reviewing the DPS lab’s ‘DNA

match.’”

A.     Standard of Review and Applicable Law

       We review a trial court’s decision to admit or exclude expert testimony for an abuse

of discretion. Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006). A trial court

abuses its discretion when its decision lies outside the zone of reasonable disagreement.

Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).

       Texas Code of Criminal Procedure article 38.35(d) provides that a forensic analysis

of physical evidence and expert testimony relating to the evidence are not admissible in

a criminal action if, at the time of the analysis, the crime laboratory conducting the analysis

was not accredited by the Texas Department of Public Safety. TEX . CODE CRIM . PROC .

ANN . art. 38.35(d)(1) (Vernon Supp. 2009).

B.     Analysis

       On appeal, Neighbors argues that the trial court erred in excluding portions of Dr.

Gunasekera’s testimony because the court based its ruling on the State’s “sole objection”

that Dr. Gunasekera “was not part of an accredited laboratory.” See TEX . CODE CRIM .

PROC . ANN . art. 38.35; see also TEX . GOV’T CODE ANN . § 411.0205 (Vernon Supp. 2009).




                                              11
The State argues that only its “initial challenge was to the expert’s qualifications under rule

703 by applying the accreditation requirements of section 411.0205 of the Texas

Government Code and article 38.35(d) of the Texas Code of Criminal Procedure” and that

it “continued to object during the hearing, challenging the reliability of the expert’s opinion”

as well as “the testimony’s admissibility on relevancy and other grounds under rules 401

and 403.” According to the State, Dr. Gunasekera was precluded from challenging “the

DPS lab’s DNA analyses because he did not perform an independent analysis, not

because he was not accredited.”

       Our review of the record demonstrates that the trial court continuously referred to,

and based its ruling upon, article 38.85.3 See TEX . CODE CRIM . PROC . ANN . art. 38.35.

Although the plain language of article 38.85 makes it clear that forensic analyses must be

performed by an accredited laboratory, no Texas case has addressed whether the statute

applies to an expert who reviews an accredited lab’s forensic analysis and forms an

opinion regarding the analysis’ interpretation without performing an independent forensic

analysis.

       Assuming, without deciding, that the trial court erred in excluding portions of Dr.

       3
           Shortly after the defense counsel concluded its offer of proof, the court stated:

                Okay. And what this statute says is that for you to offer evidence, it has to be from
       an accredited lab and not speculation by som eone who is not an accredited lab about results
       of an accredited lab in determ ining the DNA sam ples. And so I will not allow speculation by
       a non-accredited lab. And I’m not saying Dr. Gunasekera can’t do this, I’m saying he doesn’t
       have the credentials that the State requires m e, as the gatekeeper of the evidence, to find
       to allow you to do the things you’re wanting to do. You need a different— you either needed
       a different expert or you need to have him get sam ples and test it on his own . . . .

                  ....

               Okay. But you see what I’m saying? I have a duty, as the gatekeeper, to uphold
       these statutes that have been given to m e, so in keeping with the statute I’m not going to
       allow anyone, Dr. Gunasekera or anyone else, no m atter how qualified they are no m atter
       how m uch sm arter than you they are about DNA, to com e in and say well, the Corpus Christi
       Lab blew it . . . .



                                                      12
Gunasekera’s testimony, such error was harmless. See TEX . R. APP. P. 44.2(b) (providing

that any error, other than constitutional error, that does not affect substantial rights must

be disregarded). A substantial right is affected when, after reviewing the record as a

whole, a court concludes that the error has a substantial and injurious effect or influence

on the outcome of the proceeding. See Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim.

App. 2002); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In conducting a

harm analysis, we consider everything in the record, including any testimony or physical

evidence admitted for the jury’s consideration, the trial court’s instructions to the jury, the

State’s theory, any defensive theories, closing arguments, and even voir dire if material to

Neighbors’s claim. See Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002).

In assessing harm, factors to be considered include the nature of the evidence supporting

the verdict, the character of the alleged error, and how the evidence might be considered

in connection with the other evidence in the case. Id. The weight of the evidence of

Neighbors’s guilt is also relevant in conducting the harm analysis under Rule 44.2(b). Id.

at 357; see TEX . R. APP. P. 44.2(b).

       In determining the magnitude of the harm resulting from the exclusion of portions

of Dr. Gunasekera’s testimony, we have examined and considered the entire record.

During trial, the trial court conducted a hearing of Dr. Gusanekera outside the jury’s

presence. At the hearing, defense counsel presented Dr. Gunasekera’s testimony through

a question-and-answer offer of proof. At the hearing, the trial court expressed the following

concern:

              What [Dr. Gunasekera is] going to say is well, there could have
       been—she [A.L.] could have had sex with two guys or three guys because
       there’s evidence that there might be another male present. But I don’t hear
       anybody saying anything to me that, well, missing that DNA is going to make


                                              13
       it impossible for any accredited lab to read accurately anybody’s DNA,
       because they have read a DNA chain and they have drawn a known sample
       of blood from Mr. Neighbors and read that DNA chain and it matches on 15
       points. . . .

       Outside of the jury’s presence, Dr. Gunasekera testified that he had not performed

an independent forensic analysis of A.L.’s panties and, instead, formed his opinions after

reviewing a hard copy of the DPS lab’s forensic analysis. Dr. Gunasekera stated that his

review revealed “other alleles in the mixed sample that do[ ] not belong . . . to either [A.L.]

or [Neighbors].” According to Dr. Gunasekera, the presence of these “other alleles”

generated the possibility of confusion of matching the alleles to Neighbors and possibly

indicated that there was more than one suspect. Dr. Gunasekra’s testimony continued:

       [Defense Counsel]: Okay. Do you have an alternative theory that you
                          formed from reviewing this same—the same
                          information?

       [Dr. Gunasekera]:     The only theory I can say is that there’s more than two
                             individuals in this one sample that’s been studied for the
                             evidence.

       Q:                    Would that be consistent with another sexual encounter
                             in this same time period?

       A:                    It could be.

       Q:                    Does that . . . [w]hen we’re looking at the mixtures that
                             you have reviewed, is there a possibility that because
                             we don’t know the unknown person and their [sic] DNA,
                             that some of that DNA may be masquerading as Mr.
                             Neighbors’[s]? Is that possible?

       A:                    That’s possible, yes, sir.

       Q:                    In the alternative, is it also possible, according to your
                             review of the information, that either that is—either that
                             is correct or, alternatively, the sample is not
                             representative enough to be able to make a definitive
                             finding?


                                              14
       A:                    That could be possible, too.

       After defense counsel conducted its question-and-answer offer of proof, the trial

court stated:

              What he [Dr. Gunasekera] has said is exactly the scenario that I laid
       out for you, is that all he can say to the jury is that there may have been
       more than one sexual encounter by [A.L.] on the day in question. I think
       she’s already admitted that in front of the jury. He can’t exclude your client
       as one of those participants. And so if the jury believes, based on the DNA
       testing done by the lab in Corpus Christi, that he is a participant, either one
       of many or the only one, it doesn’t make any difference, because the statute
       doesn’t say he’s absolved if he’s the third guy or the fifth guy. It says that he
       cannot have consensual sex with a 12-year-old child and that’s what we’re
       here about. It’s not about whether he is one of many, it’s about whether he’s
       one at all.

The trial court then ruled that Dr. Gunasekera would be allowed to testify and explained:

               But [Dr. Gunasekera] won’t be allowed to do anything that re-
       interprets or says other than what that . . . [.] He can educate—if you think
       it’s beneficial to have him educate the jury on what alleles and loci or locus
       or whatever it is, if you think that’s beneficial to you, you can do that. But he
       cannot say that he believes that [Neighbors] is not a contributor to that DNA
       mixture in the panties of [A.L.]

       On appeal, Neighbors argues that he was “denied the opportunity to present to the

jury [Dr. Gunasekera’s] opinions and conclusions which called the State’s ‘DNA match’ into

doubt.” Upon limiting Dr. Gunasekera’s testimony, the trial court ruled that Dr. Gunasekera

could testify that, in general, a mixed sample of more than two persons reduces the

reliability of DNA testing. At trial, the jury heard testimony that, on the day in question, A.L.

had unprotected sex with C.D. prior to the alleged sexual assault by Neighbors. Morales

testified that the DNA sample from the semen stain was treated as a “mixture sample”

because it contained the DNA of more than one individual. Baylor testified that there was

no strong indication that an additional male contributed to the “mixture sample.” However,


                                               15
Dr. Gunasekera testified before the jury that: (1) a mixture sample of more than two

persons “very much” reduces the reliability of the results of a forensic analysis; (2) a

“mixture sample” that is not separated correctly can affect the reliability of the results

obtained; (3) when multiple contributors have similar alleles, it is difficult to “see the

difference” and establish DNA profiles; and (4) the presence of a third, unknown contributor

could lower the reliability of the results obtained from the sample.

       During closing arguments, defense counsel reminded the jury that “this case is

about[ ] three things. It’s about flawed testimony, it’s about flawed histories, it’s about

flawed results.” Defense counsel emphasized the possibility of a third contributor, as well

as the possibility that the presence of a third contributor undermined the reliability of the

DPS lab’s results.4

       4
           During closing argum ents, defense counsel argued:

               Now, we know from what we’ve heard, if you choose to believe the fact that she had
       sex, as she said, with [C.D.] those two days and that she hadn't bathed or she was wearing
       the sam e clothing, the sam e panties, now those panties are where all of our DNA testing
       com es from . She told you that she had used no condom with [C.D.], who is also African
       Am erican, so I think you can reasonably deduce whether you think that there was a third
       contributor to that stain that was being tested.

                 Now, we also know this. W hen it com es to DNA evidence, DNA evidence never says
       this is the person, it says I can’t exclude this person. But if you recall m y questioning to Lisa
       Harm on Baylor, I asked her if this was like a card gam e when we’re looking at different
       people’s DNA. She said yeah, it’s like a card gam e, but we have cards that have the sam e
       num bers. W e all sit at the card table and we get our hands in front of us. And the two people
       at the table who we know write down what cards they have. There’s som eone else sitting
       there and we don’t know what cards they have, let’s throw them all in the m iddle. W ell, one
       person had a two and the other person had a two, whose is it? Couldn't tell you that, but I
       know they both have two’s. But when you don't know what the other card holder had and
       you’ve m ixed it all up in this pile, that’s how we have the problem of, well, is it really Mr.
       Neighbors or is the unknown person. Does it really belong to the victim or does it belong to
       Mr. Neighbors, or how about the unknown person that we don’t have? W ho knows. And the
       problem with that for the State is that that affects the reliability of the test.

               Now, if you recall Ms. Baylor’s testim ony, you rem em ber I asked her, well, we ought
       to be able to account for all of the alleles, right, because you have a perfect m atch, so we
       should be able to put these all in order and figure out who’s who. But you’ll also recall she
       had no answer for m e. I said what about this allele, where does that go? W ell, I don’t know.
       That was her response, basically. And when she says yeah, she adm itted there could be
       another contributor. W ell, in the end no DNA expert knows what goes into a sam ple . . . . But



                                                      16
       Moreover, as previously discussed, A.L.’s testimony is alone sufficient to support

a conviction for aggravated sexual assault. TEX . CODE CRIM . PROC . ANN . art. 38.07; see

Garcia, 563 S.W.2d at 928. Therefore, even if the jury chose to discredit the DPS lab’s

results, the jury, nevertheless, could have found beyond a reasonable doubt that Neighbors

committed aggravated sexual assault. See id.

       Upon reviewing the entire record, we conclude that the trial court’s error, if any, did

not have a substantial and injurious effect or influence on the jury’s verdict and must be

disregarded. See TEX . R. APP. P. 44.2(b). Accordingly, Neighbors’s first issue is overruled.

                                           IV. CONCLUSION

       Having overruled all of Neighbors’s issues on appeal, we affirm the trial court’s

judgment.

                                                         ________________________
                                                         ROGELIO VALDEZ
                                                         Chief Justice

Do not publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed the
1st day of April, 2010.




       when you start off with som ething that’s unknown and then you start off with som ething that
       you m ay not be able to trust, then you cannot trust the reliability of those results.




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