Texas Stamp


PD-0192-22 08/24/2022

1. “The Fourteenth Court erred when it held that it would violate due process for the court to take judicial notice that the science behind DNA is valid.”

2. “The Fourteenth Court erred when it held that a DNA profile run in accredited laboratory is not something upon which an expert may rely in making a determination that DNA profiles match.”


At the punishment phase of Null’s sexual-assault trial, Null objected (based on lack of reliability under Tex. R. Evid. 702) to the surrogate testimony of Symonds, an analyst with the Houston Forensic Science Center, about DNA-test results linking Null to a different sexual assault.  An analyst had created the results at Bode Technology—a lab contracted to help reduce a backlog of sexual assault kits in Houston.  Symonds testified she would review the electropherogram provided by Bode to determine whether she agreed or disagreed with their call as to what alleles were present.  Symonds stated that she did not know the Bode analyst or her qualifications, was not present when the testing was done, did not know if Bode’s instruments were calibrated correctly, and did not personally know Bode’s protocols.  The trial court overruled Null’s objection.

A majority of the en banc court of appeals reversed.  It held that the State failed to meet its burden by clear and convincing evidence that the scientific technique was applied correctly.   In doing so, it distinguished a case in which an analyst was permitted to testify about results created by a different analyst in the same lab.  Dreyer v. State, No. 09-09-00422-CR, 2011 WL 193494, at *4-5 (Tex. App.—Beaumont Jan. 19, 2011, no pet.) (mem. op., not designated for publication).  The majority also rejected the State’s argument that the trial court was entitled to take judicial notice of DNA analysis.  Here, the trial court did not notify the parties that it was doing so, as it had done in other instances, so that it would violate “clearly established constitutional rights.”  The majority then concluded that the error was harmful.

Chief Justice Christopher dissented.  First, she stated that Tex. R. Evid. 703 does not require the personal knowledge of experts.  Next, she asserted that no minimum standard for reliability requires an analyst to at least be employed by the same laboratory.  She noted that this case is indistinguishable from Molina v. State, 362 S.W.3d 539 (Tex. Crim. App. 2021), which held that the Confrontation Clause was not violated when an analyst compared DNA previously generated by a different lab to another profile.  Third, she pointed out that Symonds was not a surrogate for the admission of Bode’s unadmitted report; instead, she used the raw data to support her conclusions.  According to Symonds' review, there was uncontroverted evidence that Bode’s analysis was correct.  Finally, she stated that judicial notice is appropriate.   

The State faults the majority for failing to apply judicial notice.  It states that the majority treated DNA as an adjudicative fact, not a legislative fact.   Under the majority’s reasoning, it would violate due process for a court to take judicial notice that the earth orbits the sun.  Further, it states that a finding of judicial notice should be implied; there’s no reason to require a trial court to take notice expressly.  This would mean that HGN, an established subject of judicial notice, could not be used to affirm a ruling unless the trial court explicitly took notice.   

The State advances the dissent’s point on Rule 703, including that the majority’s opinion creates an improper minimum standard for admissibility.  Last, the State notes the majority’s rationale conflicts with Molina.




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