Opinion issued October 22, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00472-CR
ALVIN EARL MURPHY, Appellant
V.
THE STATE OF TEXAS, Appellee
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.
Sam Nuchia
Justice
Panel consists of Justices Hanks, Higley, and Nuchia.
Justice Hanks concurs in the judgment only.
Do not publish. Tex. R. App. P. 47.2(b).