The cabbie's clothing and the DNA on his lip were all addressed by the trial judge. On the former he said the cabbie's clothing suggested that he was going to have sex with the complainant. The DNA on the cabbie's lip (but no where else) was explained in the same general way. But even assuming that the cabbie's intent was to have sex with the passenger, that alone establishes nothing about consent.

The most logical conclusion from all the circumstantial evidence is that the cabbie and passenger were going to have sex. The judge states this explicitly. However there was zero evidence, circumstantial or otherwise, to show at what point the passenger became incapable of giving consent.

For the purpose of consent, trying to establish capacity from a text message is near impossible. I've had texts from people I knew to be sober but the message was near gibberish.