Cases Dealing With ''Admissibility of DNA Evidence'' In Texas

In Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992), the court delineated the standard for the admissibility of novel scientific evidence which in that case involved DNA identification evidence (the RFLP method). In Kelly, the "Frye doctrine" (Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923)) was abandoned. In establishing the new standard, the Kelly court utilized Rules 702 and 403 of the Texas Rules of Criminal Evidence (now merely rules of evidence). Under Kelly, before admitting scientific evidence, a trial court must make a "threshold determination" as to whether the testimony will help the trier of fact understand the evidence or determine a fact in issue. See 824 S.W.2d at 572. Thus, when the trial court is faced with a proffer of expert testimony on a scientific topic unfamiliar to jurors, the trial court's first task is to determine whether the testimony is sufficiently reliable and relevant to help the jury (fact finder) in reaching an accurate result. See id. If the trial court determines that the proffered expert testimony is reliable (i.e., probative and relevant), he trial court must next determine whether the proffered testimony's probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. If the evidence is determined to be admissible, then the jury is permitted to hear it. See Fuller v. State, 827 S.W.2d 919, 930 (Tex. Crim. App. 1992). Kelly further explained how the reliability prong of the test of admissibility should be met. To be considered reliable, scientific evidence must satisfy three criteria. First, the underlying scientific theory must be valid. Second, the technique applying the theory must be valid. Third, the technique must have been properly applied on the occasion in question. See 824 S.W.2d at 573; Griffith v. State, 976 S.W.2d 241, 244 (Tex. App.--Amarillo 1998, pet. ref'd). A test similar to Kelly applies under the federal rules. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590-92, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993). For a discussion of the Daubert and Kelly standards and the standards now applicable to non-scientific expert testimony, see Roise v. State, 7 S.W.3d 225 (Tex. App.--Austin, 1999, pet. filed); compare Nations v. State, 944 S.W.2d 795 (Tex. App.--Austin 1997, pet. ref'd). It is clear that Kelly announced that DNA identification evidence (RFLP method) is admissible in Texas. See Kelly, 824 S.W.2d at 574; Griffith v. State, 976 S.W.2d 241, 244-45 (Tex. App.--Amarillo 1998, pet. ref'd). Campbell v. State, 910 S.W.2d 475 (Tex. Crim. App. 1995), recognized the Kelly holding and held that the results of the PCR analysis or method of DNA testing was also admissible in evidence. See 910 S.W.2d at 479. In discussing the PCR method, the court noted that the test was less exact than the RFLP method but had other advantages. See id. at n.6. There are a multitude of Texas cases following Kelly and holding DNA identification evidence admissible. See: Trevino v. State, 991 S.W.2d 849, 851-52 (Tex. Crim. App. 1999); Wolfe v. State, 917 S.W.2d 270, 274 (Tex. Crim. App. 1996); Hicks v. State, 860 S.W.2d 419, 424 (Tex. Crim. App. 1993); Hepner v. State, 966 S.W.2d 153, 160 (Tex. App.--Austin 1998, no pet.); Barnes v. State, 839 S.W.2d 118, 123-24 (Tex. App.--Dallas 1992, pet. ref'd); Coleman v. State, 833 S.W.2d 286, 288 (Tex. App.--Houston [14th Dist.] 1992, pet. ref'd).