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Molina v. State

Court of Appeals of Texas, First District

August 29, 2019

WILBER ULISES MOLINA, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 338th District Court Harris County, Texas Trial Court Case No. 1433542

          Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

          OPINION

          Gordon Goodman Justice.

         A jury found Wilber Ulises Molina guilty of aggravated sexual assault and assessed his punishment at 55 years of confinement. Molina appeals, contending:

(1) the trial court violated his constitutional right to confront the witnesses against him by allowing an analyst to testify based on DNA testing that was performed by others at an out-of-state laboratory;
(2) the evidence is legally insufficient to support his conviction because there is no admissible evidence that he sexually assaulted the complainant; and
(3) the prosecutor misstated the law and made improper and prejudicial statements about matters outside the record during closing arguments.

Finding no reversible error, we affirm.

         BACKGROUND

         In 2000, when the complainant was 23 years old, four men abducted her, at least three of whom then sexually assaulted her at gunpoint. She was blindfolded during the assaults.

         More than one of the assailants ejaculated while sexually assaulting the complainant. To her knowledge, none of her assailants used a condom. Nor did any of the complainant's assailants make any effort to remove their semen from her or her clothing after they were done assaulting her.

         The complainant's assailants abandoned her afterward. She then sought help and summoned law enforcement. A police officer took her to a hospital, where a nurse completed a sexual-assault kit and took the complainant's clothes, including her undergarments, to preserve any evidence of the assaults.

         None of the complainant's assailants were identified for more than a decade and a half. In 2017, however, Molina voluntarily provided a cheek swab to the Houston Police Department for DNA analysis. A grand jury subsequently indicted Molina for aggravated sexual assault after a comparison of Molina's DNA profile with a DNA profile generated from semen found in the complainant's undergarments matched. Molina pleaded not guilty.

         At trial, the complainant testified that she would not be able to identify any of her abductors. No other witnesses could identify the complainant's abductors either. The DNA evidence was the sole link connecting Molina to the crime.

         Motion to Exclude

         Molina had moved to exclude the DNA evidence, contending that its introduction would violate his constitutional right to confront the witnesses against him. He argued that this was so because the complainant's undergarments were tested for DNA by an out-of-state laboratory and neither the analyst who performed the test nor any other employee from that out-of-state lab would be testifying. The trial court deferred its ruling pending the testimony of the state's expert.

         Evidentiary Hearing

         The state presented Lloyd Halsell, Operations Coordinator for the Houston Forensic Science Center, as its DNA expert. The trial court then held an evidentiary hearing about the DNA evidence outside the presence of the jury.

         Halsell testified that the Houston laboratory did not process any DNA evidence in 2003 due to quality-assurance concerns. The sexual-assault kit at issue therefore was sent for processing to Reliagene, an independent laboratory in New Orleans. Reliagene processed the kit and issued a report of its findings the following year. No one at the Houston Forensic Science Center independently processed this evidence. Nor did Halsell supervise Reliagene's processing of the sexual-assault kit.

         Halsell explained that processing of the type performed by Reliagene in 2004 consists of physical examination of the evidence to determine if there is any biological material present, the extraction of any DNA from this material, and the application of techniques necessary to generate a profile from the DNA. The processing of evidence differs from its analysis, which entails examination of the data accumulated by processing to generate a DNA profile, if possible, that can then be used for comparison with profiles from other samples.

         Halsell acknowledged that each laboratory has different standards and protocols, and that he did not know what standards and protocols Reliagene used. Halsell testified, however, that he knew Reliagene was accredited with respect to maintaining the proper quality-assurance standards. He also testified that the paperwork accompanying the processed evidence indicated that Reliagene had applied proper standards to preserve it from contamination and to maintain a proper chain of custody.

         In 2017, the Houston Forensic Science Center received a cheek swab taken from Molina. The Center processed this swab for DNA.

         Halsell then analyzed the underlying data generated by Reliagene in 2004 and the Center in 2017. He examined the data to ensure that it was adequate for comparison. While Halsell reviewed and considered Reliagene's report, he testified that his report was not based solely on Reliagene's and that his analysis was independent of Reliagene's. Halsell stated that he reviewed the computer-generated data compiled by Reliagene and that his own report was based on this data. He relied on this computer-generated data in forming his expert opinion in this case.

         Halsell opined that Reliagene's data was scientifically reliable. He based this opinion on Reliagene's paperwork, which documented that it had performed the steps that the Center uses to ensure reliability. His confidence in the reliability of the data was bolstered by his ability to independently analyze the data and generate a DNA profile. Halsell testified that the generation of a DNA profile would have been less likely-"we would not expect a profile to be generated"-if Reliagene had not gathered the underlying data in a scientifically reliable way.

         After hearing Halsell's testimony, the trial court ruled that it was admissible. The trial court, however, excluded Reliagene's report.

         Halsell's Trial Testimony

         Halsell testified about the DNA evidence before the jury. He opined that, based on his comparison of the 2004 and 2017 DNA profiles, Molina could not be excluded as a possible contributor of the DNA in the complainant's undergarments. In other words, Molina's DNA profile matched the DNA profile obtained from the complainant's undergarments. As to the first sample obtained from her undergarments, the probability that a random, unrelated Hispanic male would be included as a possible DNA contributor was 1 in 26 trillion. As to the second sample, the probability was 1 in 3.9 quadrillion. For reference, earth's population is about seven billion.

         Jury Verdict

         The jury found Molina guilty as charged. It assessed his punishment at 55 years' incarceration. The trial court entered a judgment of conviction in conformity with the jury's verdict.

         DISCUSSION

         I. Confrontation Clause

         Molina contends that the trial court violated his constitutional right to confront the witnesses against him by allowing Halsell to testify based in part on the DNA testing performed by Reliagene, an independent, out-of-state laboratory.

         A. Standard of review and applicable law

         The Confrontation Clause of the Sixth Amendment to the United States Constitution gives a criminal defendant the right to cross-examine the witnesses against him. See generally Crawford v. Washington, 541 U.S. 36 (2004). Thus, testimonial statements of witnesses who do not take the stand at trial cannot be admitted into evidence unless the absent witness is both unavailable and the defendant had a prior opportunity to cross-examine the witness. Id. at 59.

         But this constitutional rule of exclusion applies only to statements that are testimonial in nature; thus, whether an absent witness's statement is testimonial is a threshold issue for the court to decide. See id. at 68; Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004). We review de novo a trial court's constitutional legal rulings, including whether an absent witness's statement is testimonial and thus barred from evidence. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).

         B. Analysis

         The question before us is whether the Confrontation Clause bars a testifying expert from relying on computer-generated data gathered by employees of a different laboratory who processed physical evidence for DNA unless those employees also testify. Three decisions inform our analysis-Williams v. Illinois, 567 U.S. 50 (2012); Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App. 2015); and Garrett v. State, 518 S.W.3d 546 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd). Based on these decisions, we hold that computer-generated DNA data from another lab is not testimonial, and the Confrontation Clause thus does not bar a testifying expert from relying on it even though the persons who accumulated the data do not take the stand and are not subject to cross-examination.

         Williams v. Illinois

         In Williams, the Supreme Court faced an issue very like the one before us. In a rape prosecution, the state's expert testified that a DNA profile produced by an out-of-state laboratory matched a DNA profile produced by the state's crime lab using a blood sample from the defendant. 567 U.S. at 56, 59 (Alito, J., plurality op.). The expert relied on her own comparison of the two DNA profiles in opining that the defendant could not be excluded as a possible contributor. Id. at 61-62. The out-of-state lab's report was not admitted into evidence and the state's expert did not read from it on the stand or identify it as a source of her opinions. Id. at 62. The expert did not conduct or observe the work the out-of-state lab did to generate its DNA profile. Id. The defendant objected based on the Confrontation Clause. Id.

         In a 5-4 decision, the Court rejected the defendant's constitutional challenge. But a majority of the Court did not agree on a rationale Writing for himself and three others, Justice Alito concluded that the expert's reliance on another lab's DNA profile was not testimonial either because she merely informed the factfinder of the basis for her opinion, rather than vouching for the profile's accuracy, or because the other lab made the profile before the defendant was a suspect Id. at 70-75, 81-84 Writing for herself and three others, Justice Kagan rejected both of these positions Id. at 125-38 (Kagan, J, dissenting) Justice Thomas, writing for himself, agreed with the dissent's criticism of the plurality opinion, but nonetheless thought the out-of-state lab's DNA profile was not testimonial because its report containing the data on which the state's expert relied lacked the formality and solemnity necessary to render its contents testimonial Id. at 103 (Thomas, J, concurring in the judgment).

         As the Court of Criminal Appeals observed, the Supreme Court's decision in Williams is too fractured to serve as precedent. See Paredes, 462 S.W.3d at 516 (no rule can be derived from Williams); see also Vasquez v. State, 389 S.W.3d 361, 370 (Tex. Crim. App. 2012) (plurality opinions lack precedential value). Williams establishes only that the Supreme Court has yet to resolve the issue before us.

         Paredes v. State

         In Paredes, the Court of Criminal Appeals decided whether "the admission of a supervising DNA analyst's opinion regarding a DNA match" violates the Confrontation Clause "when that opinion is based upon computer-generated data obtained through batch DNA testing." 462 S.W.3d at 511. Under the circumstances before the Court, it held that the admission of this opinion was constitutional. Id.

         Paredes involved a murder prosecution, in which the state's DNA expert was the director of the laboratory that tested the evidence. Id. at 512. Three different lab analysts processed the evidence for DNA. Id. The testifying expert had supervised their work and analyzed the resulting DNA profiles to ascertain whether there was a match. Id. She acknowledged that she did not actually watch the analysts perform their work even though she relied on their raw data. Id. at 512-13. She testified that had there been a problem with their work, her analysis would have produced no result, rather than producing an incorrect result. Id. at 512. None of the three analysts testified at trial. Id. at 513. Nor was their raw data admitted into evidence. Id. Whether the expert wrote her ...


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