Opinion
No. 01-07-00472-CR
Opinion issued October 22, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 185th District Court, Harris County, Texas, Trial Court Cause No. 1055439.
SUPPLEMENTAL MEMORANDUM OPINION ON REHEARING
On motion for rehearing, appellant Alvin Earl Murphy contends this Court erred in considering as inadmissible hearsay the nurse's offer-of-proof testimony that V.Y. said she had sexual contact with her boyfriend on the day of the sexual assault. Appellant argues for the first time on rehearing that the statement should not be excluded as inadmissible hearsay because V.Y.'s statement was made for the purpose of medical diagnosis or treatment under Texas Rule of Evidence 803(4). We agree and consequently grant the motion for rehearing. We, however, deny appellant's requested relief and leave our judgment affirming appellant's conviction and sentence unchanged. Appellant argues that the evidence that V.Y. had sexual contact with her boyfriend on the day of the sexual assault is admissible under Texas Rule of Evidence 412(b)(2)(A) to rebut or explain scientific or medical evidence offered by the State. The DNA evidence that appellant seeks to rebut includes testimony that the probability that the sperm cell fraction on the vaginal swab taken from V.Y. could be from someone other than appellant is less than 1 in 310 million in the general `population. This is not, therefore, a case in which the scientific or medical evidence identifies that sperm was found on the victim, and the question is merely who was the source. See Allen v. State, 700 S.W.2d 924, 929 n. 4 (Tex. Crim. App. 1985). This is also not a case in which the scientific or medical evidence identifies physical trauma to the victim as a result of the sexual assault, but the evidence does not implicate a specific assailant. Id. In those situations, the defendant is entitled to introduce evidence of the victim's sexual behavior during the relevant time period to rebut the State's scientific or medical evidence. This case is different. The scientific or medical evidence introduced at trial, the credibility of which appellant does not challenge on appeal, is (1) that the sperm found on V.Y. matched appellant's DNA and (2) there is less than 1 unrelated person in 310 million of the general population who could be a genetic match for the sperm found on V.Y. Assuming the evidence that V.Y had sexual contact with her boyfriend on the day of the sexual assault somehow rebuts the State's DNA evidence, then appellant must still show that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. See TEX. R. EVID. 403, 412. Here the trial court must weigh all the policy considerations behind the adoption of the rape shield law, Rule 412, against the probative value of the evidence. Considering the minute statistical probability that V.Y.'s boyfriend could have been the source of the sperm, we cannot conclude the trial court abused its discretion in not allowing the nurse's testimony to be admitted before the jury. Accordingly, after rehearing the case, we deny appellant's requested relief and again overrule his point of error. Our previous judgment affirming appellant's conviction and sentence remains unchanged. Justice Hanks concurs in the judgment only.
Jennifer Otto, a forensic DNA analysis, testified for the State. The 1 in 310 million statistic is the most favorable for appellant:
Q. . . . What was the result of the sperm fraction?
A. In the sperm fraction of the anal swabs, we obtained a full single source male profile. And this profile matched the DNA profile obtained from [appellant]. So, again, we give some statistical weight to this conclusion. And, so, the frequency of this profile from an unrelated individual chosen at random is less than 1 in 520 trillion in the population.
Q. So, does that mean you would have to look at 520 trillion people before you would expect to see the same profile?
A. That's correct.
. . .
A. So, from the sperm fraction of the vaginal swabs, we obtained a mixture of DNA, but we also were able to identify a major male component. . . . And, so, this profile was consistent, this major male profile, was consistent with [appellant]. And, so, again, we gave statistical weight to this conclusion and the frequency of the major component of this mixture from an unrelated individual at random is less than 1 in 40 trillion in the population. . . .
In addition to this, we also performed a mixture calculation including both [V.Y.] and [appellant]; and so, the probability that a randomly chosen person would be included as a contributor to the mixture is less than 1 in 31 — excuse me, 310 million in the population.
Q. Okay. And, again, it means you'd have to go through that many people before you would come across another person with that DNA?
A. Right. You would have to go across that many people to find someone that could be included either in the mixture or in the major component.
Q. Okay. And going back to the major component, you're talking about the sperm cell fraction on the vaginal swab; is that right?
A. Yes. The major component of the sperm fraction in the vaginal swabs.
Q. Okay. Did there appear to be an unknown source of DNA on the vaginal swab?
A. No. Again, we didn't see any unknown foreign DNA from anybody except [V.Y.] and [appellant] or that was consistent with them.