Appeal from the 338th District Court Harris County, Texas
Trial Court Case No. 1433542
consists of Chief Justice Radack and Justices Goodman and
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.
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.
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
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
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.
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.
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
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.
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
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.
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.
2017, the Houston Forensic Science Center received a cheek
swab taken from Molina. The Center processed this swab for
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.
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.
hearing Halsell's testimony, the trial court ruled that
it was admissible. The trial court, however, excluded
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 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
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.
Standard of review and applicable law
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.
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.
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, 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.
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).
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, 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.
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 ...