Bekendam, Stephanie Lynn, 2014 Tex. Crim. App. LEXIS 960

Bekendam ran a red light, caused an accident, and was taken to the hospital; blood testing found no alcohol but detected cocaine/metabolite by EMIT and GCMS.
DPS toxicologist’s written report did not list cocaine because the GCMS result for cocaine was below the laboratory’s .05 reportable cutoff, but the witness testified at trial she saw a trace below the reportable limit.
Defense filed a motion in limine and a Daubert/Kelly gatekeeper hearing challenging relevance and reliability; trial court found the expert’s testimony reliable and relevant and overruled objections.
At trial the expert testified the metabolite level indicated recent or habitual cocaine use and opined cocaine would have been present at the time of the crash; Bekendam was convicted of DWI and sentenced to 20 years and a $10,000 fine.
The court of appeals affirmed admission of the expert testimony; Bekendam and the State each sought discretionary review to resolve preservation and admissibility issues.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Preservation of error	Bekendam: motion in limine and gatekeeper hearing raised reliability and relevance; adverse ruling preserved error without further objection	State: trial objections were limited to relevance, so reliability challenge not preserved	Preserved: court finds reliability was raised and ruled on at gatekeeper hearing; error preserved
Admissibility under Rule 702/Kelly	Bekendam: expert’s testimony about trace below DPS cutoff was unreliable, deviated from DPS protocol, and lacked clear-and-convincing proof of reliability	State: GCMS and EMIT are accepted methods; expert used standard tests and methodology; testimony fit and was reliable	Admissible: GCMS testing and expert analysis were reliable and relevant; trial court did not abuse discretion
Effect of deviating from DPS reporting protocol	Bekendam: expert effectively ignored reporting protocol and testified to data she was prohibited from reporting; such deviation renders opinion unreliable	State: expert followed testing protocols; reporting cutoff is policy, not the scientific technique; no evidence showed the testimony violated DPS policy or was scientifically unreliable	No error: no proof the expert deviated from testing protocols or that test results below cutoff were scientifically unreliable

Daubert v. Merrell Dow Pharm., 509 U.S. 579 (establishes federal gatekeeping role for scientific evidence)
Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) (admissibility of scientific evidence analyzed via Kelly factors)
Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009) (proponent must prove reliability and relevance; distinguished on facts)
Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010) (expert testimony inadmissible where methodology was idiosyncratic and unsupported)
Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012) (polygraph-based opinion inadmissible due to unreliability)
Somers v. State, 368 S.W.3d 528 (Tex. Crim. App. 2012) (discusses relation of EMIT and GC/MS results)
Everitt v. State, 407 S.W.3d 259 (Tex. Crim. App. 2013) (reliability and relevance are both components of Rule 702 gatekeeping)
Moraguez v. State, 701 S.W.2d 902 (Tex. Crim. App. 1986) (adverse pretrial ruling preserves error without repeated trial objection)
Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) (objection must give trial court an opportunity to rule/correct)
Russeau v. State, 171 S.W.3d 871 (Tex. Crim. App. 2005) (criteria for assessing scientific reliability)