824 S.W.2d 568 (Tex.Crim.App. 1992), 969-90, Kelly v. State

Docket Nº:969-90.
Citation:824 S.W.2d 568
Party Name:Barry Dean KELLY, Appellant, v. The STATE of Texas, Appellee.
Case Date:February 05, 1992
Court:Court of Appeals of Texas, Court of Criminal Appeals of Texas

Page 568

824 S.W.2d 568 (Tex.Crim.App. 1992)

Barry Dean KELLY, Appellant,


The STATE of Texas, Appellee.

No. 969-90.

Court of Criminal Appeals of Texas.

February 5, 1992

Page 569

Richard Alley, Fort Worth, for appellant.

Tim Curry, Dist. Atty. and C. Chris Marshall, Betty Marshall, Alan Levy and Robert K. Gill, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.



A jury found appellant, Barry Dean Kelly, guilty of murder and assessed his punishment at imprisonment for life. Tex.Penal Code § 19.02(a)(1). The Second Court of Appeals affirmed appellant's conviction. Kelly v. State, 792 S.W.2d 579 (Tex.App.--Fort Worth 1990). We granted appellant's petition for discretionary review, pursuant to Texas Rule of Appellate Procedure 200(c)(2), to determine whether the court of appeals erred in holding that the trial court did not abuse its discretion in admitting DNA "fingerprint" evidence 1 at appellant's trial over his objection. 2 We will affirm the judgment of the court of appeals.

Before trial, appellant filed a motion to suppress any expert testimony regarding DNA identification test results on the ground that such tests had "not gained general acceptance [as reliable] in the scientific community in which such testing belongs." At trial, after the State indicated its intention to offer expert testimony regarding a DNA identification test, the trial court conducted a hearing to determine the admissibility of such testimony. The hearing was conducted outside the presence of the jury, pursuant to Texas Rule of Criminal Evidence 104(a) and (c). 3


    Six witnesses testified at the suppression hearing--five for the State and one for the defense. According to the testimony presented, the State's witnesses and their backgrounds were as follows: (1) Alan Matthews Giusti, holder of a B.S. degree in molecular biology from Yale University, former laboratory technician at Lifecodes Corporation; 4 (2) Kevin McElfresh, holder of a Ph.D. degree in molecular and population genetics from the University of Georgia, laboratory supervisor at Lifecodes Corporation; (3) Philip Stewart Hartman, genetics professor at Texas Christian University in Fort Worth, never affiliated with Lifecodes; (4) Joseph Frank Sambrook, holder of a Ph.D. degree in microbiology, chairman of the biochemistry department at Southwestern Medical School in Dallas, never affiliated with Lifecodes; and (5) Robert C. Benjamin, holder of a Ph.D. degree in biology from Harvard University, professor of biology at the University of North Texas in Denton, never affiliated with Lifecodes.

    In brief, the testimony of the State's expert witnesses at the suppression hearing established the following: (1) it is generally accepted by molecular biologists that each person's DNA is unique and does not

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    change during that person's lifetime (Hartman); (2) the "restriction fragment length polymorphism" (RFLP) technique, 5 generally accepted by molecular biologists as reliable, can be used to compare a known sample of DNA with an unknown sample of DNA to determine whether the two samples share certain molecular characteristics (McElfresh, Hartman, Sambrook, Benjamin); 6 (3) studies of sample populations can be used to determine reliably the frequencies, within the general population, of the molecular characteristics in question (McElfresh, Hartman, Sambrook); (4) sufficient studies of sample populations have already been performed to allow reliable calculations concerning the frequencies, within the general population, of the molecular characteristics in question (McElfresh, Hartman, Sambrook); (5) a false "match" of a known DNA sample with an unknown DNA sample is impossible with the RFLP technique (McElfresh, Hartman, Sambrook, Benjamin); (6) reliable and generally accepted techniques are available to extract DNA from blood and semen stains (Hartman); (7) Lifecodes Corporation utilized both a generally accepted DNA extraction technique and the RFLP technique to compare DNA from appellant's blood with DNA from a semen stain found at the home of Appellant's victim (McElfresh,

    Giusti, Benjamin); (8) Lifecodes' test showed that appellant's DNA shared certain molecular characteristics with the semen stain DNA (Giusti); (9) the RFLP analysis in this case was performed by Lifecodes in a scientifically acceptable manner (Giusti).

    John Thomas Castle, appellant's witness at the suppression hearing, testified that he had a B.S. degree in chemistry from Angelo State University in San Angelo, and that he was the owner-operator of Castle Forensic Laboratories in Dallas. He testified further that, in his opinion, the RFLP technique, at least as applied to forensic samples, was not generally accepted in the scientific community. He also questioned the reliability of Lifecodes' test results because, he claimed, Lifecodes had a policy of re-using certain laboratory materials.

    At the conclusion of the testimony at the suppression hearing, appellant argued that DNA identification evidence was inadmissible under Frye v. United States, 293 F. 1013 (D.C.Cir.1923), because such evidence was, according to appellant, "not accepted [as reliable] in the scientific community and [by] the folks who deal with DNA." Appellant also argued that insufficient population studies had been conducted to make a DNA "match" meaningful. The State responded that the holding in Frye was not binding on Texas courts and that the evidence in question had been shown to be reliable and thus admissible under Texas Rule of Criminal Evidence 702.

    After the litigants concluded their arguments, the trial court stated:

    I'm going to find that the DNA testing, genetic testing evidence is probative of material issues involved in the case. The material evidence is relevant. The evidence is relevant to the matters before the Court.

    Its relevancy does not--its relevancy outweighs the prejudicial effect of it, and the Court will find that the testimony of the expert witnesses presented by the State established that the DNA testing procedure employed in this case is reliable and that it is generally accepted in the relevant scientific community.

    For that reason, I will deny your motion to exclude the evidence of the DNA genetic tests and will permit the State to present such evidence before the jury.

    (Emphasis added.)

    Hartman, Giusti, Sambrook, and McElfresh testified again before the jury, essentially repeating the testimony they gave at the suppression hearing. In addition, however, Sambrook and McElfresh testified that, according to their calculations, only

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    one person in approximately 13 million possesses DNA with the same molecular characteristics that Lifecodes' test showed were shared by appellant's DNA and the DNA extracted from the semen stain found at the home of appellant's victim. In other words, Lifecodes' test did not positively identify appellant as the source of the semen, but the test did place appellant within the almost infinitesimal class of males who could have been the source.


    Appellant argues now, as he did below, that the Frye "general acceptance" test governs the admissibility of scientific evidence in Texas courts and that the trial court abused its discretion in admitting the DNA evidence because, according to appellant, DNA identification tests--and Lifecodes' procedures in particular--are not generally accepted as reliable by any scientific community. In support of his argument, Appellant cites various authorities that have questioned the reliability of DNA identification testing. See, e.g., J. Neufield & N. Colman, When Science Takes the Witness Stand, Scientific American 46 (May 1990); Note, The Dark Side of DNA Profiling: Unreliable Scientific Evidence Meets the Criminal Defendant, 42 Stanford L.Rev. 465 (1990).

    The State counterargues that the "helpfulness" test of Rule 702 governs the admissibility of all expert testimony, scientific or otherwise, and that the DNA evidence at Appellant's trial was proven to be reliable and helpful and thus admissible under Rule 702. 7


    The Second Court of Appeals agreed with the State and held that the trial court did not abuse its discretion in admitting the expert testimony. More specifically, the court of appeals "found" that the DNA evidence was reliable, and thus admissible, "since expert testimony established the underlying scientific principle was valid, the technique applying the principle was valid, and the technique was properly applied for tests in this case." Kelly v. State, 792 S.W.2d at 585.


    To determine whether the court of appeals erred in holding that the trial court did not abuse its discretion, we must first determine what test governs the admissibility of novel scientific evidence in Texas criminal trials. We must then determine whether the trial court's decision admitting the DNA evidence was reasonable given the testimony at the suppression hearing and given the governing test of admissibility.

    The test which some jurisdictions 8 use with respect to the admission of novel scientific evidence is the test that was enunciated in Frye:

    Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the...

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