398 S.W.3d 358
Tex. App.2013Background
- Bekendam, convicted of DWI, appeals a ruling allowing a DPS toxicology expert to testify about trace cocaine in her blood.
- On Feb. 28, 2008, Bekendam drove erratically, collided with vehicles, and ran a red light, injuring others.
- At the hospital, emergency staff reported alcohol odor; police obtained Bekendam’s blood.
- Initial blood test showed no alcohol; subsequent testing for controlled substances was conducted.
- State’s expert, Hawkins, testified that EMIT screen was positive for cocaine class and GCMS confirmed trace cocaine and benzoylecgonine, though results were below DPS reportable cutoff.
- Trial court conducted a Daubert/Kelly hearing and admitted Hawkins’s testimony; jury found Bekendam guilty with enhanced punishment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DPS testing policy undermines reliability of testimony | Bekendam argues policy utility renders testimony unreliable | State contends EMIT/GCMS are reliable; policy separate from scientific technique | No; admission falls within permissible discretion |
Key Cases Cited
- Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App.1992) (three Kelly prongs for reliability of scientific evidence)
- Hernandez v. State, 53 S.W.3d 742 (Tex.App.-Houston [1st Dist.] 2001) (gatekeeping and reliability framework for expert testimony)
- Somers v. State, 368 S.W.3d 528 (Tex.Crim.App.2012) (EMIT reliability; GCMS confirmation discussed)
- Bolen v. State, 321 S.W.3d 819 (Tex.App.-Amarillo 2010) (gatekeeping for DPS-policy-adherent breath tests)
- Somers v. State, 333 S.W.3d 747 (Tex.App.-Waco 2010) (EMIT results described as positive for cocaine/metabolites)