Everitt, Michael Paul
2013 Tex. Crim. App. LEXIS 255
| Tex. Crim. App. | 2013Background
- Appellant Everitt was stopped for weaving at high speed and shown signs of intoxication; he admitted drinking the previous day and later claimed hydrocodone use that day.
- A Rhomberg sobriety test was videotaped showing impairment; the officer testified to signs of intoxication.
- In the Intox Room, Everitt stated he had taken hydrocodoneearlier today, prompting the State to seek admission of the videotape and expert testimony on drug effects.
- Everitt moved to suppress the hydrocodone statement as irrelevant without proper expert foundation; the court held a Rule 702 hearing.
- The trial court allowed the videotape and DRE testimony, over Everitt’s objections, and the court of appeals later found preservation lacking; this Court granted review on preservation and the expert testimony issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Everitt properly preserved error on admissibility. | Everitt preserved error by timely, clearly objecting citing DeLarue and Layton. | State argues preservation was lacking due to the trial court’s ruling not explicitly addressing reliability. | Preserved; court of appeals erred in failing to recognize preservation. |
| Whether the trial court abused its discretion admitting the expert testimony. | Everitt argues lack of reliability/foundation under Rule 702; Daubert/Kelly standards apply. | State contends reliability and relevance were established by Daubert/Kelly gatekeeping. | To be determined on remand; court remands for consideration of the trial court’s admission of videotape and DRE testimony. |
Key Cases Cited
- Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009) (admission requires reliable expert foundation for relevance of scientific evidence)
- DeLarue v. State, 102 S.W.3d 388 (Tex. App.—Houston [14th Dist.] 2003) (reliability required for evidence of drug presence)
- Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) (Daubert/Rule 702 gatekeeping for admissibility of scientific evidence)
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (U.S. 1993) (gatekeeping reliability standard for expert testimony)
- Jordan v. State, 928 S.W.2d 550 (Tex. Crim. App. 1996) (relevance and reliability as components of admissibility)