Stanton Clark Packard, M.D. v. Maurice Robert Miller, Jr. ( 2007 )

NO. 07-06-0454-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MAY 31, 2007

______________________________



STANTON CLARK PACKARD, M.D., APPELLANT

V.

MAURICE ROBERT MILLER, JR., APPELLEE



_________________________________

FROM THE 69^TH DISTRICT COURT OF MOORE COUNTY;

NO. 04-81; HONORABLE RON ENNS, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION ON REHEARING

Remaining convinced that our original disposition is correct, we overrule Appellee's motion for rehearing, but withdraw our original opinion and judgment, and substitute this opinion in lieu thereof with additional comments.

Appellant, Stanton Clark Packard, M.D., brings this appeal from an order denying a motion to dismiss filed pursuant to § 74.351 of the Texas Civil Practices and Remedies Code. ⁽¹⁾ Section 74.351(a) mandates that, in a health care liability claim, the claimant shall serve each party or the party's attorney with an expert report, with curriculum vitae attached, not later than the 120^th day after the date the claim is filed. Section 74.351(b) provides that if that report has not been served within the requisite period of time, the trial court shall dismiss the claim. In this case Appellee, Maurice Robert Miller, Jr., was unable to serve the expert report until the 130^th day after the date of filing because he was unable to obtain service of process until that date. The issue presented by this appeal is whether the trial court erred in denying Dr. Packard's motion to dismiss based upon the failure to serve the expert report within the statutory 120 day period, when Dr. Packard was not served with service of process during that period. Finding error, we reverse and remand for further proceedings.

Background Facts

In August 2002, Miller went to the emergency room at the Moore County Hospital complaining of mid and upper chest pain. Three days later he was admitted to the hospital for treatment of a myocardial infarction. On November 8, 2004, Miller filed suit contending that his heart was damaged by the failure of Dr. Packard to properly diagnose his heart condition. Miller was unable to effectuate formal service of process on Dr. Packard until March 18, 2005, the 130^th day after the original date of filing suit. ⁽²⁾ The expert report was attached to the petition when it was served.

Based on the fact that Miller did not serve his expert report on Dr. Packard within 120 days after the date of filing his claim, Dr. Packard moved to dismiss Miller's health care liability claim pursuant to § 74.351(b). The trial court denied Dr. Packard's motion to dismiss, and this appeal ensued.

Interlocutory Appeal

As a general rule, a party is not allowed to appeal an interlocutory order unless specifically authorized by statute. ⁽³⁾ Section 51.014(a)(9) provides that a person may appeal an interlocutory order that denies all or part of the relief sought by a motion under § 74.351(b). Because Dr. Packard's motion was filed pursuant to that statute, he is authorized to bring this appeal notwithstanding the fact that the order in question is interlocutory.

Section 74.351

Miller's claim against Dr. Packard is a health care liability claim governed by chapter 74 of the Code. Section 74.351(a) provides that a claimant in a health care liability claim shall, not later than the 120^th day after the date the claim was filed, serve on each party or the party's attorney one or more expert reports, with a curriculum vitae attached. This deadline for serving the report may be extended by written agreement of the parties; ⁽⁴⁾ however, there was no such agreement in this case. Furthermore, in situations where a report has been filed but the elements of that report have been found to be deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency. ⁽⁵⁾ This exception to the general rule is likewise not applicable to the facts of this case because it applies only in those situations where an initial report has been timely served, but has been found to be deficient in some material fashion. ⁽⁶⁾ Other than the two statutory exceptions set forth above, the trial court has no authority to extend the deadline for filing an expert report. ⁽⁷⁾

Standard of Review

The trial court's ruling on a motion to dismiss pursuant to § 74.351(b) is reviewed under an abuse of discretion standard. ⁽⁸⁾ A trial court abuses its discretion if it acts in an unreasonable and arbitrary manner such that the exercise of that discretion amounts to a "clear and prejudicial error of law." ⁽⁹⁾

Analysis

Miller argues that the trial court's denial of Dr. Packard's motion to dismiss was based upon an implied equitable extension of the time to file the expert report. Miller contends that the equitable extension was based upon a construction of Rule 21a of the Texas Rules of Civil Procedure which allows the trial court to "extend the time for taking the action required . . . or grant such other relief as it deems just." This provision specifically pertains to a party's right to seek redress from the consequences of what is commonly referred to as the "mailbox rule" and has no application to the facts of this case. Furthermore, because the Legislature has provided the exclusive means by which a trial court may grant an extension of time to file an expert report, Rule 21a does not give the trial court authority to enter an order extending the time to file an expert report.

Miller next argues that the trial court had the discretion to refuse to dismiss the suit because the failure to timely serve the expert report was due to Dr. Packard's failure to make himself readily amenable to service of process, and that by "avoiding" service of process, a health care provider might prevent an otherwise-entitled claimant from making a legitimate health care liability claim. While the equities of this argument are apparent to this Court, it is not within the province of this Court, or the trial court, to adopt an "equitable extension" to the clear requirements of § 74.351.

Finally, because Dr. Packard waited almost eighteen months to file his motion to dismiss, Miller opines that Dr. Packard should be equitably estopped from asserting his right to file a motion to dismiss pursuant to § 74.351. The Legislature did not include an explicit deadline for the filing of a motion to dismiss. Miller's equitable arguments are more appropriately directed to the reasonableness of any attorney's fees which Dr. Packard may claim to be entitled to under the provisions of § 74.351(b).

As stated above, the Legislature has provided two specific exceptions to the mandatory dismissal provisions of § 74.351(b). ⁽¹⁰⁾ To engraft an exception based upon Appellant's arguments would amount to blatant legislating from the bench. The Legislature has spoken and the seemingly harshness of this provision does not change the clear language of the statute. ⁽¹¹⁾

Conclusion

Because the trial court did not have the authority to extend the time to file the required expert report, it failed to follow clear precedential authority in the interpretation and application of § 74.351(b). Accordingly, it abused its discretion in denying Dr. Packard's motion to dismiss. We sustain Dr. Packard's issue and reverse the order of the trial court denying the motion to dismiss. This cause is remanded to the trial court with instructions to enter an order of dismissal of Miller's claims against Dr. Packard, with prejudice, and for such further proceedings and orders as the parties may show themselves justly entitled to receive in accordance with this opinion.

Patrick A. Pirtle

Justice

1. Unless otherwise noted, all statutory references herein are to the Texas Civil Practice & Remedies Code Annotated (Vernon 2005 & Supp. 2006).

2. Miller filed suit on November 8, 2004, under the version of § 74.351 that was effective for claims filed on or after September 1, 2003. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, 10.09, 23.02(a), (d), 2003 Tex. Gen. Laws 847, 864, 875, 884, 898-99. The Texas Legislature amended § 74.351 in 2005; however, the 2005 changes apply "only to a cause of action that accrues on or after the effective date of this Act. An action that accrued before the effective date of this Act is governed by the law applicable to the action immediately before the effective date of this Act, and the law is continued in effect for that purpose." Act of May 18, 2005, 79th Leg., ch. 635, § 2, 2005 Tex. Gen. Laws 1590. Because the 2003 version of § 74.351 applies to this case, all references to § 74.351 herein are to the 2003 version.

3. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).

4. Section 74.351(a).

5. Section 74.351(c).

6. See Estate of Regis ex rel. McWashington v. Harris Co. Hosp. Dist., 208 S.W.3d 64, 67 (Tex.App.-Houston [14^th Dist.] 2006, no pet.); Valley Baptist Med. Ctr. v. Azua, 198 S.W.3d 810, 815 (Tex.App.-Corpus Christi 2006, no pet.).

7. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (c); See also Soberon v. Robinson, No. 09-06-0067-CV, 2006 WL 1781623 (Tex.App.-Beaumont June 29, 2006, pet. denied)(not designated for publication); McWashington, 208 S.W.3d at 68; Thoyakulathu v. Brennan, 192 S.W.3d 849, 853 (Tex.App.-Texarkana, 2006, no pet.); Garcia v. Marichalar, 185 S.W.3d 70, 74 (Tex.App.-San Antonio 2005, no pet.).

8. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001).

9. In re Bass, 113 S.W.3d 735, 738 (Tex. 2003); quoting Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (original proceeding).

10. See footnote No. 7.

11. See Turner v. Cross, 83 Tex. 218, 18 S.W. 578, 579 (1892) (holding, "It is the duty of a court to give to language used in a statute the meaning with which it was used by the legislature if this can be ascertained; . . . and if, so applying them, the legislation in which they are found seems to be harsh, or not to embrace and give remedies for acts for which remedies ought to be given, the courts, . . . are not authorized to place on them a forced construction for the purpose of mitigating a seeming hardship, . . . . It is the duty of a court to administer the law as it is written, and not to make the law; and however harsh a statute may seem to be, or whatever may seem to be its omission, courts cannot, on such considerations, by construction sustain its operation, or make it apply to cases which it does not apply, without assuming functions that pertain solely to the legislative department of the government.")

hnique on the occasion in question. Id.

The Kelly court summarized its determination as follows:

To summarize, under Rule 702 the proponent of novel scientific evidence must prove to the trial court, by clear and convincing evidence and outside the presence of the jury, that the proffered evidence is relevant. If the trial court is so persuaded, then the evidence should be admitted for the jury's consideration, unless the trial court determines that the probative value of the evidence is outweighed by some factor identified in Rule 403. (Emphasis added.)

When the admission of such evidence is challenged on appeal, the question is whether the trial court abused its discretion by admitting the evidence.

In the case before us, appellant does not challenge the admissibility of the DNA testing, nor does he attack two of the three statistics generated from the test results. We note that in Kelly, the Court of Criminal Appeals addressed for the first time whether RFLP (restriction fragment length polymorphism) DNA testing was admissible in a criminal trial. Applying the newly announced rule, the Court concluded such testing was admissible. Id. at 574.

In this instance, appellant challenges the probability of paternity statistic calculated from the DNA test results. We conclude that the probability of paternity statistic meets the Kelly admissibility requirements and that the trial court did not abuse its discretion in admitting the challenged evidence.

The trial court conducted a hearing outside the presence of the jury to determine the admissibility of the State's DNA evidence. The State's expert, Dr. Arthur J. Eisenberg, testified about the DNA evidence generally and the probability of paternity statistic in particular. Dr. Eisenberg has a Bachelor's of Science in Biology, a Master's of Science in molecular biology, and a Ph.D. in molecular biology. He listed a number of organizations he belongs to involved in DNA testing or research including the American Association of Blood Banks, the U.S. DNA Advisory Board, and the Parentage Testing Committee. Further, he testified that he had been involved in the field of DNA testing since its inception. Eisenberg set up and manages the DNA laboratory at the University of North Texas at Fort Worth where the testing in this case was performed.

Eisenberg testified that in this case he conducted a paternity test on five males, T.S., and the baby. Appellant was one of those five, and he was the only one not excluded from paternity by the DNA testing. Eisenberg stated unequivocally that the methodologies used for statistical analysis of the test results were "standard methods" employed in over 200,000 parentage tests performed nationwide annually.

Eisenberg explained each of the three statistics in turn. The probability of paternity was calculated by using Bayes' Theorem. Bayes' Theorem, according to Eisenberg, states that prior to the testing, there is a prior probability of paternity. He stated that courts in the United States typically use a .5 or 50% prior probability because it is a neutral probability. The .5 prior probability indicates that the tested male either is or is not the father. Eisenberg further testified that this calculation was a generally accepted principle, and was standard methodology in parentage testing, having been used for twenty or thirty years. ⁽²⁾

Eisenberg further explained the theory and methodology involved in DNA testing generally. After explaining how DNA functions and how the tests are conducted, he discussed the specific results in this case. Eisenberg stated that using the .5 prior probability, which was the standard prior probability reported in parentage tests, that appellant's probability of paternity was 99.99%. At this point, the State passed Eisenberg as a witness, and defense counsel cross-examined him.

On cross, Eisenberg reiterated that the prior probability of .5 was a neutral prior probability which did not presume appellant was guilty of the crime or more likely than not guilty. He emphasized that he had personally testified in both civil and criminal paternity matters using the same statistic invoking a .5 prior probability. Eisenberg stated that he had testified in over a dozen Texas criminal cases involving paternity issues where he used the .5 prior probability.

Most notably, Dr. Eisenberg was asked point blank whether he saw any problem using the .5 prior probability in a criminal case, even assuming the defendant as presumed to be innocent. Eisenberg's answer, twice, was "[a]bsolutely not." He testified that the .5 prior probability did not unfairly skew the probability of paternity statistic. Moreover, Eisenberg stated that if a lower prior probability number had been used, like .1, then the probability of paternity statistic would have been lower, though it would still be representative of the fact that the appellant had matched at six genetic test sites. ⁽³⁾ According to Eisenberg, if a prior probability that reflected true parentage testing had been used, it would have been something higher than .5 and the probability of paternity would have been even higher than 99.99%.

Based on Dr. Eisenberg's testimony, the trial court was required to determine whether the State had shown by clear and convincing evidence that the probability of paternity statistic would be helpful to the trier of fact and that it was sufficiently reliable and relevant to help the jury in reaching accurate results. Looking to the factors outlined in Kelly, we note that Eisenberg testified that hundreds of thousands of DNA tests, and millions of HLA and DNA tests around the nation reported paternity results using Bayes' Theorem and the probability of paternity invoking a .5 prior probability. These tests were conducted by accredited testing facilities, and the statistical calculation was "standard."

Eisenberg testified about his qualifications in DNA paternity testing and reported that he was involved in the field from its inception. He testified that the statistical calculation was employed for twenty to thirty years in paternity tests based on HLA blood typing and later DNA analysis. Eisenberg commented that there were over fifty other laboratories in the country using the same techniques and reporting the same statistics. He also stated that the calculations employed in this particular test were the "standard" method of reporting paternity results around the country. Finally, he testified about the techniques involved in DNA testing, his qualifications in conducting those tests, and his experience in reporting statistics, which were "co-related" to the DNA testing.

Based on Eisenberg's testimony, the trial court clearly recognized that the Bayes' Theorem calculation was commonly used in reporting DNA paternity results. Moreover, it is clear that the probability of paternity statistic is accepted in the scientific community of molecular biology in reporting paternity results. Eisenberg stated that he used the same calculation used in thousands of other tests, indicating that he properly invoked the reporting method. Likewise, there was no challenge that he did the math improperly. We conclude that this evidence was clear and convincing in showing that the probability of paternity statistic was valid, the technique applying the statistic was valid, and that it was properly applied in this case. Thus, the trial court properly concluded that the statistic was reliable and relevant to helping the jury reach accurate results.

As to the second prong of the Kelly test, there was no challenge to the evidence as being time consuming, cumulative, confusing or misleading, or otherwise more prejudicial than probative. The only challenge raised by appellant was his assertion that the statistic violates the presumption of innocence.

The Presumption of Innocence

The presumption of innocence does not appear in the U.S. or the Texas Constitutions. However, courts have recognized that the presumption of innocence is part of the 14th Amendment Due Process and 6th Amendment right to fair trial. Randle v. State, 826 S.W.2d 943, 945 n. 3 (Tex.Cr.App. 1992); Rogers v. State, 846 S.W.2d 883, 885 (Tex.App.--Beaumont 1993, no pet.). Also, the Legislature has codified the presumption of innocence in the Texas Penal Code and the Code of Criminal Procedure. See Tex. Penal Code Ann. § 2.01 (Vernon 1994); Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 1998).

It is stated that the presumption of innocence is not a true presumption. Normally, a presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action, which may be rebuttable or conclusive. Black's Law Dictionary, 1185 (6th ed. 1990). A presumption acts as a burden shifting device. Id.

By contrast, the presumption of innocence is perhaps better phrased the "assumption of innocence." McCormick on Evidence § 342 at 579-80 4th ed. (1992). It merely describes the fact that the burden of persuasion and production in a criminal matter are on the prosecution. Id. It cautions the jury to reach their conclusion solely from the evidence adduced, and not from the fact of arrest or indictment. Id. citing 9 Wigmore Evidence § 2511 at 407 (Chadbourn rev. 1981).

The presumption of innocence is not a true presumption because the defendant is not required to come forward with proof of innocence once evidence of guilt is introduced so as to avoid a directed verdict of guilty. Black's Law Dictionary, 1186 (6th ed. 1990). Typically, cases finding violations of the presumption of innocence involve situations where the defendant is placed before the jury, dressed in shackles or jail clothes, or where the State offers evidence that the defendant has been indicted in other crimes. See Randle, 826 S.W.2d at 946; Lafayette v. State, 835 S.W.2d 131, 135 (Tex.App.--Texarkana 1992, no pet.). Clearly neither of those situations exist here.

In the case before us, testimony was elicited from Dr. Eisenberg about all three statistics. Dr. Eisenberg testified on direct about probability of paternity based on a .5 prior probability. On cross, he testified about how the probability number would change based on different prior probability values. We conclude that the use of a probability of paternity statistic based on Bayes' Theorem in a criminal proceeding does not violate the presumption of innocence. The use of a prior probability of .5 is a neutral assumption. The statistic merely reflects the application of a scientifically accepted mathematical theorem which in turn is an expression of the expert's opinion testimony. It is subject to the same conditions applied to all other expert testimony. The jury is free to disregard it. It can be weakened on cross and in argument. The statistic does nothing to shift the burden of persuasion or production in a criminal matter.

Appellant asserts that his specific challenge is a matter of first impression in Texas criminal cases. Consequently, he relies on two cases from other jurisdictions where the courts exclude the probability of paternity calculation as a violation of the presumption of innocence. While we do find cases that have admitted DNA testing and the probability of paternity statistic, we have found no Texas criminal case in which the presumption of innocence challenge was made or addressed. ⁽⁴⁾

The two primary cases the appellant relies on to support this alleged violation of the presumption of innocence challenges are State v. Hartman, 426 N.W.2d 320 (Wis. 1988) and State v. Skipper, 637 A.2d 1101 (Conn. 1994). The rationale in Hartman and Skipper is that the probability of paternity statistic violates the presumption of innocence because it assumes that the putative father had sexual intercourse with the mother; stated another way, it assumes the crime was committed by him in order to prove that the crime was committed by him. Hartman, 426 N.W.2d at 326; Skipper, 637 A.2d at 1106 (citing Hartman). Both of these cases come to this conclusion, at least in part, by relying on Peterson, A Few Things You Should Know About Paternity Tests (But Were Afraid To Ask), 22 Santa Clara L.Rev. 667 (1982).

Additionally, the Hartman court bases its conclusion on a single statement it made just one month earlier in In Re Paternity of M.J.B., 425 N.W.2d 404 (Wis. 1988). In Hartman, the court said the assumption underlying the probability of paternity statistic was "that the mother and the putative father have engaged in sexual intercourse at least once during the possible conception." Hartman, 426 N.W.2d at 326 (quoting M.J.B., 425 N.W.2d at 409, in turn citing Peterson, 22 Santa Clara L. Rev. at 685). For reasons we shall explain, we do not agree that the basic assumption that intercourse occurred is implicit in the statistic.

Peterson's Santa Clara Law Review article seems to be at the root of the Hartman and Skipper decisions. That article discusses the use of blood tests in paternity cases, including HLA testing. HLA testing reports the same three statistics reported in DNA testing, and in particular in the case before us. In that article, Peterson criticizes the value of Bayes' Theorem. He states that Bayes' Theorem accurately reflects the odds that the accused is the father only if one assumes "that the defendant had intercourse with the mother and that a random man . . . also had intercourse with her." Peterson, Santa Clara L.Rev. at 685. We note that the author of the article was himself not a statistician or geneticist, but an attorney and professor. We further note that the author does not cite direct authority (either legal or scientific) to support his statement. We disagree with this conclusion. Logically, the prior probability assumes intercourse could have occurred and thus the putative father could be the actual father, but the statistic does not necessarily assume intercourse did occur.

As Dr. Eisenberg testified at the suppression hearing, the .5 prior probability is "a neutral prior probability" that indicates "[e]ither [the putative father] is or is not the father." There was no testimony from Eisenberg or Koehler, the defense expert, indicating that the prior probability assumes intercourse necessarily occurred. The prior assumption could invoke any number of possible conditions or permutations, as Peterson points out, including time of intercourse, frequency, fertility, and the like. However, by making the prior assumption .5 (i.e., - equally weighted), Bayes' Theorem also allows that intercourse may not have occurred at all.

Hartman and Skipper rely heavily on the conclusion in Peterson's article which we consider questionable. Moreover, it is important to note that the Hartman court, while it quotes M.J.B. in part, does not follow M.J.B.'s rationale. In M.J.B., the Wisconsin Supreme Court also stated that "the probability of paternity statistic is conditionally relevant evidence; only after competent evidence is offered to show that sexual intercourse between the mother and alleged father occurred during the conceptive period may evidence of the probability of paternity statistic be received." In Re Paternity of M.J.B., 425 N.W.2d at 409. However, the Wisconsin Supreme Court further stated:

This foundational evidence [of intercourse] may be supplied by the mother herself . . . . However, we note that this threshold evidence is not limited to direct testimony by the mother that she engaged in sexual intercourse with the alleged father. Evidence that the defendant has access to the mother during the conceptive period may be offered by any individual knowledgeable of the facts of their association. By 'access' we mean that the mother and putative father were together at a time, under circumstances and in a location which would lead a reasonable person to believe that the sexual intercourse took place between them.

Id. (emphasis added). ⁽⁵⁾

In the case before us, there was testimony from Lubbock police that appellant was one of the male care workers who had access to T.S.'s dormitory. Moreover, there was evidence that appellant worked the late night shift, from 10:00 p.m. to 6:00 a.m. Both the police, via the restricted access dormitory log sheets, and appellant himself, provided evidence that appellant had the opportunity to be alone in the dorm with T.S. and other patients during the conceptive period; that is, he had opportunity to be with the patients without another worker present. Finally, it is important to note that in this case before us, due to T.S.'s impaired mental facility, there could not be any direct testimony from her regarding who assaulted her.

Three justices (of seven) dissented in Hartman. Justice Steinmertz commented in his dissent on the presumption of innocence issue. "The 50 percent prior chance assumption does not require shifting the burden of proof to the defendant and is not an impermissible assumption; rather, it is part of a scientific theory and the jury should be so told." Id. at 327. He noted that the assumption was not made in a vacuum, but was admitted only after evidence serving as the basis for the statistic was already admitted. Id. The probability of paternity statistic, Justice Steinmertz reasoned, is truly neutral. It equally assumes the defendant is not the putative father, no matter how damning the evidence in the case. Id. at 328.

We agree with Justice Steinmertz's evaluation of the statistic. In the case before us, there was evidence that appellant had access and opportunity to have intercourse with T.S. The DNA test itself indicated appellant was the father of the child. Dr. Eisenberg testified in no uncertain terms that the theory was used as the standard method of reporting paternity tests. On cross, he testified about the effect of lower prior probabilities on the probability of paternity. As with any other expert testimony, the jury was free to disregard it entirely. Nothing about the statistic shifts the burden of persuasion to the defendant.

In contrast to Hartman, Skipper represents the strongest denunciation by a court of the probability of paternity statistic as violating the presumption of innocence. 637 A.2d 1101 (Conn. 1994). There, the defendant was convicted of second degree sexual assault. The Connecticut Supreme Court stated "[t]he assumption that sexual intercourse had occurred was not predicated on the evidence in the case, but was simply an assumption made by the expert." Id. at 1106. Since Bayes' Theorem cannot be invoked without assuming a prior probability of paternity, the court reasoned that its use was inconsistent with the presumption of innocence. Id. at 1107. The Connecticut Court further reasoned that if a value presuming innocence was entered into the equation, the value being zero, then Bayes' Theorem would produce a 0% probability of paternity. Id. at 1108. Beyond that fact that this decision rests on Peterson's questionable conclusion, we simply do not agree with the Connecticut Court's rationale.

In this instance, five individuals were determined to have access to T.S. during the period the child was conceived. Initially, there was no presumption assigned to any of these men's paternity. Only after the men with access were tested, and all but one excluded, was a prior probability employed. At that point, appellant was the only actual man included, and the statistic presumes either he or a random man could have been the father. Thus, the .5 prior probability accurately represents that he either is or is not the father.

Moreover, the presumption of innocence cannot require us to enter a prior probability of zero into Bayes' Theorem as suggested by the Connecticut Court. A zero prior probability does not simply presume a defendant is innocent. Rather, a zero probability, in fact presumes that it was impossible for the defendant to be the father. ⁽⁶⁾ When a zero prior probability is plugged into Bayes' Theorem (the formula), naturally the probability of paternity results becomes 0%. The presumption of innocence does not require a jury to assume it was impossible for a defendant to commit the crime charged. Rather, it requires the jury to assume as a starting proposition that the defendant did not commit the crime, until proven otherwise. The probability of paternity, as Dr. Eisenberg testified, is merely a way of expressing and interpreting the actual DNA test results. Thus, the statistic itself does nothing to shift the burden of going ahead to the defendant.

Finally, appellant cites a third case, State v. Spann, 617 A.2d 247 (N.J. 1993). There the New Jersey Supreme Court held that where the clear impression was given to the jury that the 50% prior probability was a scientific assumption, the admission of the probability of paternity statistic was reversible error. ⁽⁷⁾ Id. at 253. In Spann, there was no explanation to the jury about how the evidence in the case might affect the prior probability, and how that would in turn affect the probability of paternity statistic. The court reasoned that a jury should use its own estimate of the prior probability of paternity, and not rely on the expert's assumption of the defendant's access to the woman. Id. at 254.

We note that the New Jersey Court did not conclude that the probability of paternity statistic violated the presumption of innocence. In fact, the court discussed a number of issues to help guide attorneys and courts in deciding whether the statistic would be admissible in any given case. Id. at 257-60. The court referred to concepts of general acceptance, reliability, and usefulness for the jury. Id. at 258. Ultimately, for future cases, the New Jersey Court left the determination of admissibility of the probability of paternity statistic to the trial court, implying that they found no interference with the presumption of innocence. Moreover, the Spann Court expressly rejected the suggestion that the Wisconsin Supreme Court arrived at in M.J.B., i.e., that intercourse must be proven before the probability of paternity statistic can be admitted. Id. at 261. The New Jersey Supreme Court stated that "[t]he calculation - Bayes' Theorem - if valid, does not depend on any particular degree of confidence in the fact of intercourse." Id.

The presumption of innocence places the burden on the State to move forward and prove that the defendant committed all the elements of the crime beyond a reasonable doubt. In a sexual assault case, one element the State must show is that the defendant caused "the penetration of the . . . female sexual organ . . ." of the victim. Tex. Penal Code Ann. § 22.011(a)(1)(A)(Vernon Supp. 1998). While it is true that the probability of paternity statistic presumes that the defendant could have had intercourse with the mother of the child, it does not assume that he did have intercourse. As Dr. Eisenberg testified, a prior probability of .5 assumes that the defendant is just as not likely the father of the child as it assumes he is the father. Moreover, even if the prior probability was .9, strongly presuming that he was the father, it still does not conclusively establish, or presume or assume he had intercourse with the woman. This is a matter for the jury based on all the evidence in the case, which could include no access, impotence, vasectomy and other similar matters.

The Indiana Court of Appeals, over an objection that Bayes' Theorem violated the presumption of innocence, expressly concluded that the probability of paternity statistic was admissible in a criminal trial. In Davis v. State, a husband and wife were convicted of neglect of a dependant. Their baby was abandoned on the side of a gravel road within hours of its birth. Using HLA testing and Bayes' Theorem, the State showed that the Davis's were the parents of the abandoned child. On appeal, the parents contended that Bayes' Theorem violated the presumption of innocence.

In Davis, one element the State had to prove was that the abandoned child belonged to the defendants. Using parentage tests, the State was able to link the defendants to the child in order to prove that they had committed the crime charged. In the case before us, the State has also used parentage tests to link the defendant with the crime charged. The issue in Davis was whether Bayes' Theorem could be used in a criminal case to show parentage. The Indiana appellate court determined that the .5 probability invoked in Bayes' Theorem was a neutral consideration and that the probability of parentage statistic was admissible. Id. at 138.

In this instance, we conclude that probability of parentage statistic is admissible under Kelly v. State, supra, and that its admissibility under Kelly does not violate the appellant's presumption of innocence. Appellant's first point of error is overruled.

Appellant's Second Point of Error

In the alternative to his first point of error, appellant claims in his second point that the trial court erred by admitting the probability of paternity statistic because there was no testimony regarding the mathematical applications of the test results of the probability of paternity testing using Bayes' Theorem. Under the point, appellant, in essence claims that as a condition of admissibility, the State is required to call a mathematical expert to comment on the possible interpretations of the statistical evidence. We disagree. Rule 702 and Kelly make no such requirement for the admission of the scientific evidence in question.

To support his position, appellant points out that where Bayes' Theorem has been permitted, some courts require certain precautionary conditions be met before allowing the evidence. Particularly, he points to Spann v. New Jersey, 617 A.2d at 264. While the New Jersey Supreme Court indicated that it might be necessary to have expert testimony from a geneticist and a mathematician in order to allow Bayes' Theorem evidence at trial, we note that the court was reviewing admissibility of evidence under its own state standard. As we have previously discussed above, in Texas the admissibility of scientific evidence is governed by Rule 702 of the Texas Rules of Evidence and the standard laid out in Kelly. ⁽⁸⁾ Again, we are convinced that the statistical evidence presented in this case satisfied that test.

The record contains testimony from Dr. Eisenberg addressing the relevance and reliability of the probability of paternity statistic. In the hearing on the motion to suppress, he testified about his extensive credentials and expertise in the field of molecular biology as applied to genetic testing. He testified that the methodologies employed in the DNA testing were standard, including the statistical calculations that were used to interpret the test results. Specifically, he testified that use of the .5 prior probability was standard in parentage testing, and that it was a neutral factor since it did not "give any weight to either side" on the issue of paternity. Dr. Eisenberg testified before the jury that if the prior probability in the calculation were reduced to .01 (1%), reflecting a very low assumption that appellant was the father, the probability of paternity was still "in excess of 99 percent." Finally, he testified that the tests run in this case were run twice in order to verify the results and rule out the possibility of errors. In light of this testimony, the trial court was within its discretion to admit the probability of paternity statistic under the Kelly test. ⁽⁹⁾

Even assuming arguendo that the probability of paternity statistic was improperly admitted, we conclude that such error was harmless. The defense had the opportunity to cross examine Dr. Eisenberg on the use of the prior probability. By cross, the defense pointed out to the jury the nature of the probability of paternity statistic and how it could be misleading. The defense did not question the other two statistics at all. Based on other evidence that appellant had access to T.S., that he had opportunity to be alone with her, that he knew she could not consent to sexual intercourse, that appellant matched on all six regions of DNA loci tested, that the test included him while excluding 99.99% of the male population of his race, and that his paternity index made him nearly 15,000 times more likely than the random man to be the father of T.S.'s child, we conclude beyond a reasonable doubt that the admission of the probability of paternity, even if error, made no contribution to the conviction. ⁽¹⁰⁾ Appellant's second point of error is overruled.

Appellant's Third Point of Error

In his third point of error, appellant claims the trial court erred by overruling his motion to set aside the verdict and judgment rendered against him and grant him a new trial because the prosecution knowingly introduced inadmissible evidence clearly calculated to inflame the minds of the jurors against him. We disagree.

The complained of statements came from Janice Robinson, another state school employee. The State's attorney asked Robinson if she was aware of a statement made by the appellant that the female clients of the State School were "easy" or that they "wanted sex." Robinson answered the question affirmatively before defense counsel objected. Upon objection, the court held a hearing outside the presence of the jury. The court denied the defense's motion for mistrial based on prosecutorial misconduct, then sustained the objection. The jury was brought back in, and the court ordered the jury to disregard the question and the answer. In essence, appellant contends that in offering the statement, the prosecution committed prosecutorial misconduct which constitutes reversible error. Again, we reiterate our disagreement.

The decision to grant or deny a motion for new trial is within the discretion of the trial court, and appellate courts will not reverse such decisions absent an abuse of discretion. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App. 1993). Moreover, error in asking an improper question or admitting improper testimony may generally be cured by an instruction to disregard. Livingston v. State, 739 S.W.2d 311, 335 (Tex.Cr.App. 1987). An exception to this rule exists where it appears that the question or answer is clearly calculated to inflame the minds of the jurors and is of such a character as to suggest the impossibility of withdrawing the impression produced on their minds. Kemp v. State, 846 S.W.2d 289, 308 (Tex.Cr.App. 1992). The issue is whether the jury was so affected by the question that they were unable to disregard it as instructed. Huffman v. State, 746 S.W.2d 212, 218 (Tex.Cr.App. 1988).

Even if we concluded the question was calculated to inflame the minds of the jury, we cannot conclude that the question or answer was of such a character as to suggest the impossibility of withdrawing the impression produced on the jurors' minds. At worst, the question placed before the jury the idea that the appellant may have made some statement indicating he thought the female clients at the state school were seductive or sexually aggressive. There was nothing in the offered statement indicating appellant actually had sexual intercourse with the female clients. The question and answer did not suggest that appellant had confessed guilt where the appellant was denying guilt at trial. See Ladd v. State, 629 S.W.2d 139 (Tex.App.--Dallas 1982, pet. ref'd).

Assuming without deciding that the evidence offered was inadmissible, we conclude beyond a reasonable doubt that any error was cured and otherwise rendered harmless by the trial court's instruction to disregard. The trial court did not err in overruling appellant's motion for new trial. Accordingly, we overrule appellant's third point of error.

In conclusion, we overrule appellant's three points of error and affirm the judgment of the trial court.

Carlton B. Dodson

Justice

Quinn, J., concurring

Publish. Tex. R. App. 47.4.

1. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403.

2. Although parentage testing based on DNA analysis has only been on the scene since the mid to late 1980's, a number of methods, including Human Leukocyte Antigen (HLA) tests, have been previously employed in paternity matters. HLA testing invokes the same statistical calculations, including the probability of paternity and Bayes' Theorem. Dr. Eisenberg testified that in the past several years, nearly a million paternity tests in the U.S. were conducted using DNA or HLA methods, each using the .5 prior probability calculation.

3. Ultimately, there was testimony before the jury that the use of a .01 (1%) prior probability would still generate a probability of paternity of over 99.3% in this case.

4. In Lagrone v. State, 942 S.W.2d 602, 608 (Tex.Cr.App. 1997), the Court of Criminal Appeals mentioned Dr. Eisenberg's opinion on the probability of paternity statistic without passing on the issue before us. We note that the probability of paternity statistic has been admitted in a number of jurisdictions in criminal trials prior to this case. However, in those cases, the statistic was not challenged as violating the presumption of innocence. See State v. Foster, 949 S.W.2d 215, 217 (Mo.App.E.D. 1997); State v. Pierre, 606 So. 2d 816, 817-20 (La.App. 3 Cir. 1992); People v. Taylor, 460 N.W.2d 582, 585 (Mich.App. 1990); Martinez v. State, 549 So. 2d 694, 696-97 (Fla.App. 5 Dist. 1989); Holley v. State, 523 So. 2d 688, 689 (Fla.App. 1 Dist. 1988); State v. Smith, 735 S.W.2d 831, 833-35 (Tenn.Cr.App. 1987); State v. Thompson, 503 A.2d 689, 690-93 (Me. 1986); Bridgeman v. Commonwealth, 351 S.E.2d 598, 602-03 (Va.App. 1986); People v. Alzoubi, 479 N.E.2d 1208, 1209 (Ill.App. 3 Dist. 1985).

5. We note that M.J.B. is a civil paternity case. The Wisconsin Court allowed the probability of paternity statistic primarily due to a state statute allowing such evidence in civil paternity cases. Nevertheless, the Hartman decision seems to depart from the rationale in M.J.B. while relying on some of that case's language.

6. Likewise, a prior probability of 1 (or 100%) would assume that no one else but the accused could have been the father.

7. This case involved Human Leukocyte Antigen (HLA) testing rather than DNA testing, but Bayes' Theorem is used to calculate probability of paternity in both tests.

8. At the time of trial, the Texas Rules of Criminal Evidence and Texas Rules of Civil Evidence were still separate. As of March 1, 1998, these rules have been consolidated. While the new rules technically do not apply to this matter, we note that the current Rule 702 is identical to the old Rule 702 under the Criminal Rules.

9. Although we conclude that the statistical evidence was properly admitted, it is worth noting that the statistics merely reinforce the truly damning evidence in this case - the DNA test itself. Eisenberg testified that only the biological father or his identical twin would match the child's DNA at every site tested. Appellant himself testified that he did not have an identical twin. Eisenberg stated that based on the DNA test, it was his opinion that appellant was the father of the child, barring a first order relative (i.e. brothers or father) or an identical twin. As between first order relatives, appellant was 64 times more likely to be the father. Here, the test results speak for themselves. Appellant matched at all six genetic sites tested.

10. Appellant waived his right to remain silent, and took the stand voluntarily. On cross, he conceded that there was a "possibility" that he had time alone with T.S., he knew T.S. was "very retarded" and she "probably" couldn't understand the nature of sexual contact or activity, and that he could not explain why the DNA test results came out as they did.