Hernandez v. State

HERNANDEZ, Arturo Chavez

Appellant, The STATE Texas. 2053-01. No. Texas, Appeals of Criminal En Banc. June Williams, Christi, Corpus Appel-

Guy lant. Horn,

Jeffrey L. First Asst. State Van Austin, Paul, Atty., Atty., Matthew State’s for State.

OPINION

PER CURIAM. present case involves the admissibil- ity of scientific evidence under Texas Rule Kelly Spe- of Evidence 702 and v. State.1 cifically, granted following we the State’s grounds for three review: 1) party seeking Must a to introduce evi- always principle dence of a scientific satisfy present evidence sufficient to State, Kelly v. the test of 824 S.W.2d (Tex.Cr.App.1992), regardless particular principle? 2) Ap- either the Court of Criminal Where peals appeals or a court of has deter- particular mined the of a scien- principle technique applying tific principle, party subsequent^ must a ly seeking to introduce evidence based upon principle that scientific neverthe- satisfy prongs less the first two of the State, Kelly test of 824 S.W.2d 568 (Tex.Cr.App.1992)?

3) Appeals in Did the Court of this case holding err that the court had by admitting its discretion abused evi- urinalysis dence of the results of a test appellant’s sample? urine questions The short answers to these three “No, no, Therefore, we are: and no.” appeals affirm held that the court which the trial court abused its discretion re- (Tex.Crim.App.1992). 1. 824 S.W.2d 568 you reag- they send company does community supervision appellant’s

yoking they you use which what ins which [sic] that was not evidence based inject rats with these they lab do reliable. Hernandez shown to be the antibod- drugs they produce so can (Tex.App.-Corpus Christi S.W.3d ies, is the antibodies happens and what 2001). drug then the antigens to attach I. have a these antibodies machine and guilty possession to Appellant pleaded them and when tag flourescent on him placed marijuana and the trial court gives through that is what light is shown a full years. Almost probation on for ten you reading. later, a motion to years the State filed ten that he had learned testified Mr. Perez alia, alleging, inter probation revoke his ninety-five ninety- to machine that the was failed to avoid the use appellant accurate, he conceded that but percent six posi- tested substances and had controlled aspects of the technical he did not know 28, 1999. marijuana January

tive for operation. the machine’s Perez, Alonzo hearing, At the revocation evidence, appellant re- At the close technician, he testified that laboratory objections Mr. Per- Rule 702 to urged his presence of appellant’s urine for the tested report. He testimony and to the lab ez’s an “ADx a machine called drugs using any- “did not know that Mr. Perez argued positive. were analyzer.” The test results underly- theory thing about the scientific as that he had Mr. Perez testified worked test, theory whether the ing the and a technician for two urinalysis lab in valid, any techniques used whether he had thir- explained that years. half He valid, whether theory applying [were] training on the specialized ty-two hours of properly applied technique was or not the and a half analyzer and about two court, however, ADx case.” The in this on-the-job training. weeks of extensive reliable the evidence was ruled he many urinalysis tests asked how When on this had testified that Mr. Perez noted say. replied, “I couldn’t performed, he had subject other cases. just many.” so

It’s Appeals Corpus The Christi cross-examination, appellant asked On testimony and the that Mr. Perez’s held explain Mr. Perez inadmissible because report were lab underlying the test: reliabil- satisfy the scientific failed to State Kelly.2, The you call floures- set out ity requirements machine uses what it had technology also noted appeals amino acid polarization

cence testimony in- antibodies Mr. Perez’s antigens and held previously deals with which in an earli- and the reason system, for the same that are in the blood admissible Well, this same er, involving what drugs.... unpublished opinion antigens being the is, see, the anti- you appellant.3 does the machine That’s your are in bloodstream. gens II. sys- in our they are not drugs, but seeking to introduce evi party A pro- your body to long enough for tem need principle a scientific them so what dence to attack duce antibodies produced urinalysis test results Hernandez, opinion that S.W.3d at 705-06. admissible") analyzer were not ADX an ("in involving this earlier case Id. at 706 an original). (emphasis in unpublished appellant we held in same (or treatises, unreliability) of always present expert testimony, tice of the satisfy or other scientific material particular methodology.5 Kelly only test. It the dawn particular type consideration of a required Trial courts are not re of forensic scientific evidence that every trial. invent the scientific wheel “gatekeep- courts must conduct full-blown However, actually some trial court must Kelly. ing” hearings under Once a scienti- reliability of the examine and assess the principle generally accepted fic particular scientific wheel before pertinent professional community and has along ride behind. Some accepted been a sufficient number of court, somewhere, has to conduct an ad adversarial Dau- through trial courts hearing to determine gatekeeping versarial bert/Kelly hearings, subsequent courts given theory the the scientific may judicial take notice of the scientific methodology.6 and its (or

validity invalidity) of that scientific the- materials, ory process, based the case, appellant objected In this under produced in prior hearings.4 evidence those Rules 702-705 to the technician’s testimo- ny concerning produced by results have, Similarly, once some courts ADx analyzer testing Appellant machine. Daubert/Kelly through a “gatekeeping” argue underlying did not that the scientific hearing, determined the scientific reliabili theory urinalysis, a as mode of deter- ty validity specific of a methodology to mining person whether a has consumed a implement particular or test scientific theory, substance, may judicial scientifically other courts take no- certain is invalid. State, 4.See Weatherred v. 15 S.W.3d various of scientific evidence tion of kinds ("once (Tex.Crim.App.2000) particular n. 4 judicial a also suffices to enable courts to take type of scientific evidence is well established notice in other demon- suits reliable, may judicial a as take notice of validity pro- strates or undermines of the fact, thereby relieving proponent technique. cess or producing the burden of evidence on that (footnotes omitted); see also 1 McCormick, question”); Emerson v. 880 S.W.2d ed.1992) (Strong (general § ac- Evidence (Tex.Crim.App.1994); see Unit also taking ceptance proper "a for condition Jakobetz, ed States v. 955 F.2d 798-800 facts, judicial notice of scientific but it is not a (2d Cir.1992) (upholding admission of results admissibility for the of sci- suitable criterion profiling analysis eight days of DNA after full evidence”). entific hearings on the of the RFLP analysis, analysis, the fixed-bin and the statis 5. See id. results; interpretation proffered tical encouraging facing a similar issue in "bright judicial 6. We have no line" rule for judicial gener the future to take notice of the technique when scientific or be- specific techniques al theories and involved in widely accepted persuasively comes so profiling). generally DNA See B. Christopher proven may judicial that future courts take C. Kirkpatrick, & Mueller Laird Federal Evi However, reliability. notice of its the more (2d ed.1994). § 353 at 663 Professors dence gatekeeping hearing, extensive the the more Kirkpatrick Mueller and note that: experts testify, noted and numerous the who submit, affidavits, provide infor- or otherwise argued years that Commentators for mation, (both pro the more scientific material general acceptance Frye] standard [of con) that is consulted and discussed at a better to the suited situation where tech- likely gatekeeping hearing, more seminal body knowledge nique, approach, or is so reviewing it is that a court will declare safely well-established that courts can take judicial validity future trial courts take notice of notice of its on the basis of invalidity extensively- widely prece- of that disseminated information and litiga- litigated proposition. Sometimes the track dent. record in from those along with materials machine itself. record objection His went is no other evi- hearings.7 There previous He stated: record, how- material dence or proper predicate no There has been ever, any finding of the support that would reliability of the test- the ... establish analyzer. ADx reliability of the has gentleman and this ing procedures expert. as an We qualified not been Thus, Ap- Corpus Christi machine, anything about the don’t know not It found that the peals did err. Based on Rule it’s reliable. whether admitting its discretion court abused object that this I would and Rule any analyzer” of “an ADX without results met, by the State has not been burden any reliability or showing of its scientific Your Honor. materials or upon other scientific reliance ADx had found “an judicial opinions which simply stated:

The trial court deter- methodology analyzer” reliable requirements meet the procedures person does or does mining whether a proce- upheld has of law. The Court marijuana body.8 in his the witness dure in other cases to. Alonzo Perez testified Court, to this the State his brief has allowed that a trial court The fact presents plethora a Prosecuting Attorney testimony by par- a type of scientific some and learned to scientific articles of cites (perhaps ob- before without ticular witness treatises, from as to some cases as well not mean that the witness’ jection) does concerning general this jurisdictions is, scientifically facto, reli- testimony ipso This is swell scientific endeavor. area of the fact that in this case. Nor does able have been The trial court should stuff. to allowed this witness the trial court has material, appellant should given this and explain testify procedures to these before to cross- opportunity have been allowed ADx machine is a scienti- why or how it. sponsored any witnesses who examine determining the for fically reliable one the main event hearing court is The trial It substance. presence of a controlled hearings; it Daubert/Kelly gatekeeping reliable, scientifically but the may well be road to an try-out on the is not that he has allowed trial court’s statement seminar. scientific not make it so. testimony before does proof had the burden State judge previously had Perhaps the trial case, (or, probation at the as in this Daubert/Kelly gatek- at trial conducted numerous show, by clear and hearing) to revocation precisely this issue eeping hearings evidence, analyzer ADx convincing that the scientifically reli- repeatedly had found determining the method of had, or is a reliable the State If he then either able. person’s body.9 marijuana presence of put that on the judge should testing general and the ADx urinalysis oppo- held proponent or example, either the 7. For reliable). scientifically analyzer particular might pre- specific scientific evidence nent of containing excerpts of pare a brief Kelly S.W.2d 9.See Daubert/Kelly hearings, appropri- from other 1992) ("before (Tex.Crim.App. novel scientific affidavits, to scientific materials ate cites under Rule be admitted evidence the issue judicial when and if cases so that court, persuade the trial proponent must arises, already prepared for party is next evidence, convincing by clear and Daubert/Kelly challenges. recurring relevant”); is reliable and therefore evidence 705-06; Pharmaceuti Hernandez, Daubert v. Merrell Dow see also but see id. 55 S.W.3d at 579, 592, cals, Inc., J., 113 S.Ct. (citing 509 U.S. dissenting) (Hinojosa, at 707-08 ("[f]aced (1993) prof with a 125 L.Ed.2d jurisdictions which have cases from other any testimony, any support It failed to offer scien- ord which did not the scientific any published judicial material, tific or ADx cannot reliability of the machine.12 It opinions might from which the trial court that, concluding be faulted for based judicial take notice of its scientific reliabili- it, the record before the State had failed to ty.10 rely upon appel- It cannot now reliability. show the machine’s independent late courts to become scienti- may take Although

fic appropriate sleuths to ferret out the appellate opinions notice of other support scientific materials which could theory or concerning specific scientific the trial court’s decision to the ADx allow Thus, methodology evaluating judge’s a trial testimony.11 technician’s the court decision,13ju- Daubert/Kelly “gatekeeping” of appeals was confronted with a trial ree- then, expert testimony, lating "freely privileges, fer of scientific and should ask outset, judge pur expert). Johnny-on- questions” must determine at the He is 104(a), expert the-spot. rely solely upon suant to Rule whether the is He need not admis (1) testify proposing knowledge conducting "gatekeep- sible evidence in his (see (2) 104(a)), ing” will assist the trier of fact to under function but at TexR. Evid. stand or determine a fact in issue. This en parties important least the have an role in preliminary tails a assessment of assisting guiding determining whether the him in reasoning methodology underlying the tes of the information. See Daubert, timony scientifically valid and of whether 509 U.S. at 579 n. 113 S.Ct. 2786 reasoning methodology properly (noting "gatekeeping” hearings can are con issue”). applied 104(a) to the facts in ducted under Rule in which the trial evidence). not bound the rules legitimate pro- 10. The State’s concern at the Appellate judges, contrary, on the cannot hearing bation revocation in this case could witnesses, question by cannot be assisted not, moment, have been that it was at that experts by parties’ presentation live or prepared hearing DaubertIK&lly to conduct a they scientific materials which believe are re- on the of the ADx machine because up-to-date, liable and or factual or scienti- given any pre-hearing it had not been notice ju- fic distinctions found in cases from other appellant might contest its scientific reli- risdictions. Brown, ability. Judge Harvey See Procedural Daubert, Issues under 36 Hous. L.Rev. course, (or appeals 12. Of had the court of (1999) (discussing advantages 1142-44 court) appellate already another Texas stated disadvantages pretrial hearings Daubert judicial that it would take notice of the scien- concluding normally that "courts should analyzer tific of the ADx methodolo- require parties reliability challenges to make gy, then both the trial court or the court of trial”). thirty days at least before In that appeals upon prior could have relied case, might given the trial court well have Here, published opinion support. howev- produce testimony, State a continuance to er, appeals explicitly the court of had found material, support scientific or cases its Mr. Perez's ADx in an inadmissible position that the ADx machine is a scienti- earlier, unpublished opinion. See note 3 su- fically reliable one. pra. Although judge, appellate a trial like an scientist, Reliance, judge, may proceedings, not be a trained the trial in Texas criminal judge parties upon judicial opinions juris at least has both and their wit from non-Texas may questions purposes nesses before him. He ask dictions for notice of the witnesses, expert request methodologies more informa of scientific theories or tion, briefing, may problematic ask for additional or seek clari be because this Court has concerning proponent expert fication the scientific state of the decreed that the testimo particular ny prove reliability by art and reliable sources in the field. must its "clear and convincing” Kelly, See du de 824 S.W.2d at E.I. Pont Nemours & Co. v. Robin evidence. son, (Tex.1995) (during jurisdictions 923 S.W.2d 573. Most other American use 104(a) hearing, "preponderance Rule Daubert trial court need of the evidence” stan evidence, See, 104(a). except normally not follow rules of those re dard used under Rule binding are pronouncements as the court whose appeal cannot serve dieial notice As be discussed jurisdiction. in the will for a trial court support bare sole source con- below, courts should never appellate reliability. concerning scientific record independent research duct their own Therefore, judgment of affirm the we literature. appeals. the court of NOT LITERATURE I. SCIENTIFIC KELLER, P.J., concurring filed a TRIAL THE PRESENTED TO opinion. COURT JOHNSON, J., concurring filed court that consults scienti- appellate An thrusts on its own initiative fic literature opinion. a fact finder —a position into the itself J., KEASLER, dissenting filed a traditionally do appellate courts position HERVEY, joined by J. opinion, they are ill- for which occupy appel- matter how careful suited. No P.J., KELLER, concurring. always the risk investigation, there is late in this case is question central fail to uncover appellate research will extent, whether, and what to deter- that are crucial scientific sources not in the may consider matters court reliability of a scientific mining the court’s deci- reviewing a trial record when Moreover, appellate courts technique.1 evidence. or exclude scientific sion to admit testimony, and such testi- cannot hear live is that The answer litigating a important mony may be is in the only material that should consider prac- Experts claim. particular may judicially matters that be record and knowledge and may field ticing theo- reliability of a scientific noticed. The beyond is reflected experience what noticed judicially be ry technique should result, the extent As a written treatises.2 (1) following circumstances: under treatise or certain scientific to which a knowledge, a matter of common when it is may treatise within that specific assertions (2) widely court decisions when available subject legitimate relied be litigated reliability has been show that only fact-finding court litigation that a to a de- fact-finding forums elsewhere the abili- Consequently, fully can address. appellate court to for the with live gree ty sufficient scientific literature to rebut well-established, part important an reliability expert testimony conclude reliability (3) determining the of reli- prior process determination and when a theory technique.3 Cross- or appellate of a scientific by made an ability has been that, 592, 10, despite help from the Daubert, will still be the risk n. 113 S.Ct. e.g. 509 U.S. at States, 2786; failed to find Bourjaily 483 U.S. parties, v. United 2775, contrary, especially 97 L.Ed.2d 107 S.Ct. articles to the relevant (1987) offering evidence for Rule (party and scientific technical those in more obscure 104(a) its admissi must show reviews”). determination journals, than in law rather 702) (such as Rule bility another rule under evidence); by preponderance of the Lauzon helpful can be ("expert Id. at 42 (8th Prods., Cir. 270 F.3d v. Senco informa- critique some of the update and to Co., 2001); Pipeline v. Tenn. Gas Nelson through published articles and available tion (6th Cir.2001). respect, In that F.3d decisions”). judicial anomaly. as an this Court stands Bonds, 12 F.3d United States v. 3. See States, 548 A.2d United 1.Jones judicial notice (6th Cir.1993)(refusing to take articles the court finds (D.C.App.1988)("If Gov- report because the a NRC appeal on acceptance, there tending general to establish psuedo-scientific magazines, examination can also be utilized to test the or even to au- credibility just wrong. sources which the thentic treatises that are parties rely. In I reasoning, appellate line with this trust courts to do their While appellate jurisdic- several best to sort out the rehable from the unre- liable, tions have that a held trial court must I trust cross-examination more. conduct a hearing ap- procedure protect before an Rules of evidence and pellate court can decide for the first time of the outcome of trial. It is theory’s technique’s hope appellate diligence that a scientific or re- mistake to liability judicially can be noticed.4 can adequately substitute for these tried safeguards. and true appel-

The difficulties that result from judicial past, we have held that relying upon late courts material outside literature, opposed notice of scientific as to the record manifest themselves most clear- technique, can be taken ly in the current trend citing to internet present- even when that literature appellate opinions. sources in While some by party ed at trial appeal.7 either or on problems arising from practice, such above, I holding As have discussed such a content, evolving as content and vanished concept carries the notice too carry completely do not over to the use they give far. Insofar as purport an treatises, outside-the-record texts ability court the conduct an many arguments against of the core independent investigation use of of outside-the- apply internet references full with literature, record scientific force to the latter those cases are situation.5 rightfully opinion overruled the Court’s court goes [W]hen outside today. the record to determine case facts ...

ignores review, its function as a court of Judge Keasler contends that scientific and it questionable substitutes its own reliability should be reviewed de novo and research results for evidence that should means, that a de novo standard of review have been tested in court for includes, necessarily review of outside- credibility, reliability, accuracy, and commenting the-record material. Without trustworthiness.6 appropri- whether de novo review is Resort opinion ate, could be made to polls, my I express disagreement. must internet, information on the to articles in Equating de novo review with an outside- State, eminent would not have a chance to rebut it 7. Mata v. 46 S.W.3d expert testimony). with (Tex.Crim.App.2001)(citing Emerson denied, (Tex.Crim.App.), 880 S.W.2d 759 cert. 1440, Beasley, 4. United States v. 102 F.3d 323, 513 115 S.Ct. 284 U.S. 130 L.Ed.2d (8th Cir.1996), denied, 1445 1246, cert. 520 U.S. (1994)). appeal, On scientific literature has 117 S.Ct. 137 L.Ed.2d 1058 generally taking support been used as for (1997); State, Turner 746 So.2d judicial notice of the of a scientific (Ala.l998)(citing Beasley); People Leahy, device, fact, Emerson, process. or See 663, 677, Cal.Rptr.2d Cal.4th However, S.W.2d at 764 — 767. we have also (1994); O’Key, P.2d 321 State v. 321 Or. taking judicial referred to notice of the treatis P.2d 672-673 themselves, es id. at 765 n. and the See, Internet, Barger, Colleen M. On the exception hearsay "learned treatise” to the Nobody Judge: Appellate Knows You’re A recognizes judicial rule notice as a method of Materials, Courts’ Use Internet 4 Journal of proving reliability. a learned treatise’s See (Fall Appellate Practice and Process 417 803(18). Tex.R. Evid. 2002). 6.Id. at 435. AS examination confuses the “how” II. JUDICIAL NOTICE

the-reeord A FOR appellate review with “what” SUBSTITUTE appellate appellate review. The “how” EVIDENCE involves the amount of deference an review appeal A. Trial versus court a trial court. appellate owes Wheth- Kelly11 We have held that the first two er outside-the-record material be con- underlying criteria —the of the involving a separate question, sidered is reliability of theory scientific and the In the “what” of Jones v. United review. technique applying theory be de- States, the District of Columbia Court of —can judicial if the through termined notice va- review, recognized a de Appeals novo lidity theory technique is or well- context, necessarily in not this does mean theory a scientific established.12 When an outside-the-record review: notice, judicial is to technique amenable context, however, De novo review this proponent of the burden of relieved simply Does it self-explanatory. is not producing question.13 evidence on record, review to the mean limited reason, I disagree For with the this must to the required but without deference “judicial contention that notice on Court’s findings analysis? trial court’s Or appeal cannot serve as the sole source of permit appellate does it also court refer- support record for bare trial court con- If to outside the record? ence sources reliability.”14 The cerning pur- so, legal what of sources: kinds pose judicial to relieve notice is articles, judicial as well as deci- fortify party having of the burden of so, jurisdictions? from If sions other although And the trial court did record. type one outside source entitled to adequate for proffer taking an basis weight any another? greater than judicial notice, if adequate is such an there event, may rely pri- court appellate basis, uphold should marily exclusively even sources decision, just trial court’s as an record, probative outside the or is the any court would case which limited to value of such sources buttress- applica- on an court’s decision was correct ing expert essential of rec- ble of law that was not fact ord?8 turn, I litigated the trial court.15 before holding proper then, examining novo to be the permissible While de bases review,9 D.C. de- taking judicial standard of notice. rely upon outside-the-record sci-

clined literature; instead the court relied notice entific B. Bases for in which the cases knowledge Matters of common litigated a fact- the scientific test was hearing,10 techniques I finding a matter which address Some scientific theories they opinion. are so well known that are matters of later S.W.2d at 764 — 765. 8. 548 A.2d at 41. Emerson v. 540, 13. Weatherred v. State, 15 S.W.3d 542 n. at 40. 9. Emerson) (Tex.Crim.App.2000)(citing 5 10. Id. at 46. 14. Court’s opinion at 31-32. 15. Mercado, 75, 568,

11. (Tex. S.W.2d 77 Kelly State v. 972 824 S.W.2d See (Tex.Crim.App.1998). Crim.App.1992). admissible, knowledge.16 particu- common of this often in Examples evidence is type thermody- of matter are the types recurring. laws of lar of cases that are In process namics and the fact that the of some cases the trial court and this both photography capable producing of a cor- fully reliability Court can evaluate the object.18 rect likeness of an Other exam- generally and relevance of the evidence ples uniqueness finger- would be the of appellate on the decisions of other based cases, prints judicial DNA. such way, courts. In this we can con- avoid notice taken finding without a fact ducting lengthy expensive our own hearing consulting any and without scienti- evidentiary hearing at aimed establish- fic literature.19 ing, attacking, or the foundation for the

disputed expert testimony. We are not Consideration other courts suggesting that the new standard for admissibility has gen- somehow become Appellate courts often look to cases in eral acceptance among appellate courts. jurisdictions help courts and other Irrespective of the decisions of other judicial determine whether notice should courts, responsibility for determin- be taken of the or reliability of a ing admissibility evidence Ver- theory technique.20 or There is mont courts remains with our good because, reason for doing so as the judges, appeal and on with this Court. Supreme observed, Court of Vermont sci- However, scientific or technical evidence entific or technical evidence that is novel frequently which is novel us is jurisdiction one is often not novel in oth- many novel to other state and federal if ers.21 Even the trial court the case courts. To the extent the evaluation of under consideration did not conduct an complete persuasive, these courts is evidentiary extensive hearing, can affirmatively rely upon we (or court reviewing court reaching our own decision.22 case) can use the appel- decisions of other late courts that had the benefit of an ex- Jakobetz, in United States v. example, For tensive hearing held at trial: Circuit, the Second based an exten- cases,

In many trial, like reliability hearing judi- this one ... sive took issue is whether a category certain cial general reliability notice of the 16. See Daubert v. Merrell questioned, likely Dow Pharmaceuti it is that the cals, Inc., 579, 11, 509 U.S. 592 n. 113 S.Ct. could take notice of that fact as a 2786, (1993); City Topeka 125 L.Ed.2d 469 general knowledge. matter of or common 47, 359, (1888). Zufall, 40 Kan. 19 P. Emerson, 767-768; Jones, 880 S.W.2d at Daubert, 11, 41-46; Martinez, 509 U.S. at 592 n. 113 S.ct. 548 A.2d at United States v. 1191, (8th denied, Cir.1993), 3 F.3d cert. 1062, 510 U.S. 114 S.Ct. 126 L.Ed.2d (1994); Youngberg, United States v. City Topeka, 19 P. at 360. Vliet, (CAAF1995); M.J. 385-386 State v. (2001); 95 Hawai’i 19 P.3d State v. City Topeka,

19. See Daubert and cited (Me.1997); Taylor, 694 A.2d 911-912 occasions, might, above. There on rare be a Kinney, State v. 171 Vt. 762 A.2d situation in which the of a scientific 841-842 theory technique or is established at trial but then, during appeal, unreliability Kinney, 762 A.2d at 841. theory technique apparent. or becomes If unreliability technique established, truly just hypothesized and not 22. Id. at 841-842. in Eighth .Expert ence... other RFLP-type testing.23 DNA Circuit, issue cases, subject cross-examination, confronted with the same as can to judicial impression, of first took notice one acceptance probative general of a of type of of this of evidence thus, judicial notice technique; scientific earlier, well-sup- upon Jakobetz’s based reviewing it is .The appropriate... of ported holding, saying: court, course, to take has care Although Jakobetz was written before opinions judicial notice of other court is Daubert, employed reliability the court expert comprehensive limited to testimo- to to Rule approach 702 similar issue; ny general acceptance on the oth- in Daubert. conclude that taken We erwise, danger that there is a reliance as to Second Circuit’s conclusions could, judicial in opinions on other effect general decision-making to delegation amount of DNA are valid techniques profiling on to another court which itself ruled holding in Supreme under Court’s inadequate of an record.25 the basis Daubert, hold courts can that future reliability.24 judicial take notice of their The Jones Court followed method case before it: Jones, District of Columbia Appeals observed that numerous courts on rely primarily therefore a trial We approach: taken this have jurisdiction, decision our own from Perhaps on articles to because reliance upon expert based scientific evidence proble- is general acceptance establish with are familiar and a record which we courts, matic, more confronted in which we confidence because have on ex- by rulings trial court not based thoroughness with which counsel willing testimony, in- pert have been judge tried the case and the evaluated rulings primarily on stead to sustain on, rely secondarily the evidence. We judicial of other court the basis notice judgment by and thus confirm our refer- opinions which themselves were based to, ju- judicial from other opinions ence testimony. A part expert substantial risdictions which have reached the same courts have alto- number .(Parenthetically, empha- we result... dispensed the need for ex- gether with rely, additionally, on size that we do not (1) testimony at pert trial if other courts of scientific or independent review established, expert testimony from legal discussing [the scientific literature sources, general scientific and other question]. prefer rely test We issue, particular acceptance of the test judicial decisions which themselves (2) the records and elabora- judicially have a trial record —or notice a sufficiently other are

tions of these cases expert trial record —that reflects testi- appel- persuasive that the complete and subject cross-examination mony, incorporate confidently can late court ).26 test] refer- about [the the work denied, (2nd Cir.), 23. is Texas standard of 26.While true that the F.2d cert. determining reliability— 121 L.Ed.2d 63 proof 506 U.S. S.Ct. convincing higher than in most clear and —is states, simply a factor to take into Martinez, 1197; see 3 F.3d at 1194 & also determining whether the out-of- account Beasley, F.3d at litigation sufficiently persuasive for state rely upon. Texas courts cases). 25. (citing A.2d at exacting required judicial process A notice I outlined. No inquiry less should be have large jurisdictions recognize suggests Appeals if a of one the Court of number validity reliability required investigate or these sources of a scientific theory technique. only or A court take on its that the lower court could could own— judicial upon weight point notice have done so. I see little in remand- great based consider, authority, ing of court to at its which is what occurred when the case discretion, acceptance among ap- presented authorities not on ini- testing DNA pellate widespread.27 courts had become tial the case is current- submission. Since us, I ly question before will address the Reliability 3. Prior Determination of I reliability pro- under the standards have theory a scientific technique’s When posed. reliability has been shown so

convincingly before a fact-finder that an B. The merits appellate court can conclude the matter standards, independent Under those an noticed, judicially should of the review scientific literature is not court can decree that the matter will permitted. So I look to the trial record subject henceforth be the notice. permissible taking judi- and to methods of instances, judicial In such notice cial notice. It is clear from the trial rec- reliability of theory the scientific or tech- urinalysis ord that the technician did not nique could then by be taken trial and know how the machine works and was not decreeing courts within the position give expert opinion jurisdiction court’s in future cases in which reliability technique the issue arose.28 operated. which the machine trial court admitted the evidence because III. THE SCIENCE AT THE ISSUE: past litigation in which the same urinal- ADX TEST ANALYZER/FPIA ysis operator testified. But we do not knowledge past A. Remand these instances of inadvisable litigation, they were not included The scientific literature and cases cited this record. And because the State did petition the State in its and briefs present expert not testimony, other before us presented were never to the present record does contain sufficient reason, Appeals. Court of For I must reliability evidence of the of the machine disagree with the suggestion dissent’s and test.29 the case be remanded to address these any sources—or even with suggestion question The next is whether the case be remanded for judicially the more limited can be noticed. The 385-386; Jakobetz, 27.Youngberg, supra. M.J. at State v. 28. See (Me.1997), Fleming, 698 A.2d 506-507 ce denied, rt. 522 U.S. 118 S.Ct. circumstances, 29. Under similar in which a (1998)("we join L.Ed.2d 664 the overwhelm to the court referred test before it as ing jurisdictions number of that have found "apparently sufficiently routine and ... ce- techniques overall of DNA employed mented to be in the manner we profiling scientifically reliable if conducted in time,” employ it at this the District of Colum- appropriate laboratory accordance with stan remarked, Appeals bia Court of "That is not controls"); dards and see also Johnson v. record, any, gener- much of a if to sustain the State., S.W.3d 262-263 Jones, acceptance [of test].” al the scientific (Ky.1999)(overwhelming acceptance of micro 548 A.2d at 43. scopic analysis by jurisdictions). hair testing that ADx occurred establish FPIA30 test con- does or the ADx machine the early as 1992. as a matter is not by that machine31 ducted is there a knowledge. Nor of common intermediate court Penrod is an Indiana holding the from this Court prior case the trial that addressed whether opinion reliable. The re- admitting or test to be ADx machine test court had erred case, con- other courts the defendant is whether that maining question results.38 ceded, trial,39 “there is at that: apparently that in a manner addressed this issue the ADx machine between” no difference of relia- judicial notice permits us to take Corpo- EMIT Cobus or Seva “and the bility. basically the same ration ... Those are brief, cites three cases: In its the State Although the names be technologies. State,33 Vannelli,32 Penrod v. Koenig basically are they different a little Koenig involved v. State.34 and Carter con- appeal, the defendant On same.”40 inmate, prison on a ADx test conducted prove failed to the State had tended that In a marijuana.35 positive for who tested ADx ma- reliability of the scientific “The footnote, stated the Ninth Circuit case from the Citing the Jones chine.41 im polarization is a fluorescein ADx test Appeals,42 District of Columbia (FPIA) is used to munoassay test recognized court the Penrod marijuana drugs bio acceptance and other gained general detect had EMIT test Referring properly performed, community.43 fluids. logical When the scientific that the ADx generally concession are the defendant’s FPIA for cannabinoids tests same, basically the tests were proposi and EMIT authority for this As accurate.”36 that, court held the Indiana tion, cited a medical the Ninth Circuit statement,” the trial upon “[biased say how The court did article.37 admitting the evi- not err court did no and made of the medical article learned no other The court articulated dence.44 fact-finding hearing at to a reference reli- holding the ADx test basis machine or the ADx which able. any litigated. testing FPIA was Without holding that the Ninth Circuit’s the Penrod

assurance is unclear whether It hearing, the ADx test fact-finding holding we upon a intended a broad is based or a nar- future cases holding reliable for all its was not factor should court did not holding the trial The case row analysis. into a notice analyzer 37. Id. as utiliz- the Adx Perez described 30. Immu- ing “Fluorescence Polarization Penrod, generally. See 38. testing. noassay” method opinion is not com- court’s The Indiana 39. ADx machine The test conducted 31. the concession pletely clear on when "ADx test.” to as the also referred sometimes made. Cir.1992). (9th F.2d 422 32. 971 original). (ellipsis in 611 N.E.2d at Dist.1993). (Ind.App., 2nd 611 N.E.2d Id. (Ind.1999). 34. 706 N.E.2d opinion, Previously ante. cited in this Penrod, F.2d at 422. 35. 971 N.E.2d at 654. 422 n. 1.

36.Id. in admitting abuse its discretion judge evi- “CIVA” test at issue.47 One dissent- former, ed, dence the case at hand. If the citing holding Penrod’s based for that holding basis defendant’s concession, defendant’s which mentioned —the concession—is tenuous. While the defen- ADx, EMIT, and Seva.48 dant’s concession posi- was adverse to his Supreme The Indiana Court reversed.49 tion, hardly such a concession can be con- test, Concerning urinalysis the the court adequate sidered an for formulating basis stated, Judge “we note Friedlander’s dis- general applicable rule to all cases. observed, beyond sent where he ‘it is de- However, wording the of the opinion lends urinalysis bate that a suffi- has achieved at support least some to the latter inter- cient level of scientific to be pretation, Carter, the same accepted evidence in our [citation courts’ appeals held that holding applied Penrod’s Urinalysis technology hardly omitted]. only to that case: novel has become a conventional Penrod, In we noted that the Record drug-testing, means of the results of which contained a statement that “there is no have been deemed reliable in Indiana difference between Abbott Labora- [the] statements, support courts.”50 In of its tory machine ... or Corpora- the Seva Supreme Judge the Indiana Court cited Penrod, tion.” 611 N.E.2d at 654. This and, Friedlander’s dissent and Penrod re- reference is insufficient to allow lying upon quotation Penrod’s of the defen- notice concerning the at machine issue case, dant’s in that concession noted that in this case. The Penrod decision indi- urinalysis “Penrod also references ‘Seva’ cates that this statement by was made machines at issue in the case before us.”51 probationer counsel; thus, the or his inescapable The conclusion is that the while it was a sufficient basis for our Supreme holding Indiana Court’s in Carter Penrod, decision it does not form a solely flowed from the defendant’s conces- sufficient acceptance basis for of such Carter, sion in Penrod. And in the case of evidence in other cases.45 the concession support was used to the involved, Carter among things, reliability, proposition Seva machine’s question concerning of a uri- not at was even issue Penrod. The nalysis test named in the record as provide State’s cases do not sufficient basis “CIVA,” which an been inaccu- to hold that the ADx machine and the rately “Seva,” spelling transcribed FPIA test are reliable. which would by denote the test devised has, however, Corporation.46 My Seva research uncovered a holding Aside from Toran, application beyond People Penrod had no few other cases. its facts, own Appeals Appeals Indiana Court of Illinois Court of addressed a claim also held that only probationer’s Penrod involved that a confession of cocaine system ADx apply and did not involuntary.52 use was The court held that Carter, 45. Carter v. 685 N.E.2d 1115 n. 49. 706 N.E.2d at 554-555. Dist.1997), reversed, (Ind.App., 2nd (Ind.1999). N.E.2d 552 50. Id. Id. at Id. at 1115 n. 4. Ill.App.3d 52. 219 162 Ill.Dec. (Friedlander, Id. at 1116-1117 J. dissent- (2nd Dist.1991). N.E.2d 595 ing). error, confession, comparable system’ if was tern was to the ‘EMIT

admission accuracy sensitivity.”59 This drug post- test positive harmless because re- trial affidavit was never contested.60 In urine sults.53 defendant’s was tested 1989) (1) fact, magistrate (in findings of written by two different methods: (2) judge drug testing held ADC’s meth- analyzer and Toxi-Lab thin ADx test; od was reliable.61 tests in- layer chromatography both presence of cocaine.54 Accord- dicated Although addressing the ADx ana court, “Testimony ing to the Illinois Georgia lyzer, in Love v. State Su presented testing that both methods were appears preme Court discussed what to be accepted reliable within the generally as underlying test —described So, chemistry early field.”55 as as court as the “Fluorescence Polarization use, analyzer ADx in and there the was (FPIA)” case, In that Eminase test. ex testimony at that tests con- that time was FPIA pert witnesses discussed the method generally by ducted the machine were ac- by Georgia as one of two used methods reliable, cepted as at least as cocaine. Investigation Bureau of to determine the however, such questionable, It is whether in marijuana urine.62 In a presence establishes the test’s lawsuit, civil witnesses testified California determining marijua- presence for of analyzing to three different methods na. (1) drugs: presence urine for the en zyme multiplied immunoassay technique evidence of surfaced in More (2) (EMIT), polarization im fluorescence Lockhart, McCoy unpublished 1993 (3) (FPIA), munoassay gas chromatog and by Eighth In opinion Circuit.56 that (GC/MS).63 raphy/mass spectrometry The case, against an inmate filed the Arkansas reliability of various tests was not these (ADC) a 42 Department Corrections discussed, except prac that the to observe § his claiming 1988 action due U.S.C. laboratory to test under one tice of rights by had a ran- process been violated two, positive if of the first and result test urinalysis dom “unreliable” re- occurred, to the third retest under metho marijuana.57 positive turned a result for d.64 trial, an affidavit After a ADC submitted its of Medical and of appeals from Administrator California court explaining ADC admissibility Dental Services uti- of ADx test addressed system” type People “ADx and a second lized the results v. Nolan.65 defen ADx to confirm results.58 The affi- dant was tested machine. He of test sys- marijuana pro positive “the ADx tested for his davit further attested that Id. Id. at 598-599. 60. 53. at 597. 61. Id. at *3. Id. (Ga.1999). Ga. S.E.2d 56 Id. 62. 271 (8th U.S.App. Corp., LEXIS 215 Cal. 63. Wilkinson Times Mirror (1st 1993)(unpublished). Cal.Rptr. App.3d Cir. Dist., Div.1989). 3rd Id. *2-*3. Id. at Cal.Rptr.2d Cal.App.4th 65. 95 Dist., (2nd Div.2002). 6th at *4. 59.Id.

bation was revoked. Id. at 333. The there methodologies Cali are several different began by citing holding fornia court cases conducting urinalysis testing. for General urinalysis generally accepted is a acceptance “urinalysis testing” could be drug testing.66 method of The court fur based tests not at issue the case ther stated that “The ADX Abbott test has (the gas chromatography/mass spectrome- general acceptance’ reached a ‘level of test, try example). unhelpful Also community the scientific ... is an [and] the court’s distinction between machine presence marijuana accurate test for the methodology, and its insistence that in biological fluids.”67 support, For the machine itself need not be shown reli- Carter, Penrod, court Koenig.68 cited only position able. Not does this contra- Taran, Citing the California court also re case, Kelly requires dict our which that the ADx marked that the test had been used “technique applying theory” be shown cocaine,69 before to test for and the court reliable,77 analysis of but the cases indi- observed that the ADx machine had been urinalysis employ cates that various tests perform used to thousands of tests methodologies, they may different even if drug program.70 local The court obtain similar results. While the Nolan compared the ADx test to the EMIT test: points court FPIA out that and EMIT are “Both the ADX Abbott and the older tests, immunoassay both that observation test) (enzyme EMIT immunoassay use is likewise of limited value because the well-accepted immunoassay scientific tech suggests they caselaw that are different nique drugs to detect in sup urine.”71 In tests, if they even share some common port reliability of this comparison, characteristics. And to the extent the Cal- Penrod, Carter, court Koenig, cited and upon ifornia court Koenig, relied Pen- Farrier,72, Spence v. an Eighth Circuit case rod, cases, and it Carter relied addressing reliability of EMIT testi hand, foundation of sand. On the other ng.73 Finally, the California court indicat the Nolan court did add the fact that the ed that its focus methodology, was on the ADx machine had been in drug used not the machine carrying out the method perform tests, thousands of and it re- ology: always “There will be new devices Toran, ferred to in which there was live to implement established scientific meth testimony about the of the ADx ods. But a Kelly74/Frye75hearing is not system. required devices; for new applies it to new methodologies.”76 An that in issue has arisen some of these comparison

The California cases is the court’s observation that between the ADx/ urinalysis, abstract, in the FPIA generally system is ac- and the system. EMIT cepted is not particularly helpful because significance comparison of that is that the Nolan, 66. Id. at 334. Cal.Rptr.2d 73. at 334.

67. Id. People Kelly, Rptr. 74. 130 Cal. P.2d 1240 68. Nolan, States, Cal.Rptr.2d Frye at 334. v. United 293 F. 1013 (D.C.App.1923). Id. at 335. Nolan, Cal.Rptr.2d at 334. Id. at 334. (8th Cir.1986). Kelly 807 F.2d 753 77. See 824 S.W.2d at 573. foreseeable, overwhelmingly perhaps has It even inevit- system been

EMIT able, reliability of that one court will hear evidence accepted as reliable.78 The extensively process find it litigated test has been be- on a new reliable fact-finders, parties being with the fore another trial court will hear same or process and to conduct to offer live rule that the able similar evidence and comparison arises, A of the cross-examination.79 situation is not reliable. When might the EMIT test allow the ADx test to fall to the courts make a will well-recog- piggyback ADx test to onto the courts. ruling applies to all trial This reliability of case; nized EMIT. long the law has been the must be uniform for all in all the courts of citizens Although sparse, the references are this state. indication, litiga- there is at least some level, that the ADx test is tion at the comes, approach When time reliability. to EMIT in its comparable dissent Judge described Keasler’s is the hearing one There has been least one. the law must be appropriate Because that the ADx live witnesses testified which applied, decision must lie uniformly detecting a reliable test was method they Because courts. with system The ADx has been usage. cocaine decision, if the record does must make years for fourteen or more and has use to determine not offer sufficient data used thousands of cases and across been reliable, process the new whether jurisdictions. I have multiple And consult courts must free to single case in found a which A Judge if hears testi- sources. What analyzer, ADx FPIA or the method process Expert Z finds the mony of uses, expert questioned by an wit- reliable, the Judge and then B hears testi- Although this is ness or fact-finder. process Expert the mony of Z and finds reliability, ques- and the evidence some findings cannot both unreliable? The one, the evidence is perhaps tion is close up to appellate It is to the courts true. convincing sufficiently extensive and not make the choice. confidently court to take no- for a courts Ruling that our are re- reliability. analyzer’s of ADx Conse- tice consulting opinions to the other stricted Ap- I agree that the Court quently, states does not appellate courts from other affirmed. peals’s decision should be prob- the really address the issue solve If those other courts not re- lem. JOHNSON, J., concurring. literature, in the either record viewed in great expansion live a time of We own, novo, they have on their de ruled Diagnostic ma- technology. the world to follow their conclu- ignorance, and more identify can detect and kinds chines If other folly. would be those sions of chem- increasingly smaller amounts and in their ef- have reviewed the literature justice, if In the context of criminal icals. truth, then we are fects to discern the in question is a controlled the chemical reviewing made after relying decisions substance, will some defendant somewhere novo, forbidding the literature de while theory and validity of the challenge the this to do that same review. courts of state used the machine. With process far more wise allow case, process of our It seems we move toward this court, charged challenges. body with for the evaluation such own cases). Jones, (citing 548 A.2d 44-46 maintaining law, uniformity of support address established. argument, of its reliability directly. the issue of appel- The the State relies on scientific literature late courts must be free to present consult their which it not did to the trial court own sources and test strength or to Appeals. the Court of weakness of presented the evidence at tri- of Appeals conducted an (indeed, judges al. lawyers) Most most review, confining abuse discretion itself have little scientific training. It is difficult record, to the trial and found nothing to evaluate data in an area which one is establish the of the scientific knowledgeable; hamper we should not dissent, or technique. The on the judges’ efforts to educate themselves in hand, review, conducted a de novo their search for truth. Once the decision considering scientific literature outside the made, then, on reliability has been as with record, and found the science reliable. breath-alcohol testing many other new processes, question of whether the the- A majority of this Court concludes that ory process properly were applied will the State’s literature is “swell stuff’1 but fall to the discretion of the trial court. it can not be considered because the State did not present it to the trial court. So

Our today begins decision develop- Court, Appeals, like the Court of ment process of our own for evaluation of applying an abuse of discretion review. reliability; step the first is to create a record at trial provides to an determining But proper standard of appellate court sufficient information on Kelly review for claims complicated is a which to base a reliability. decision on endeavor. previously While we have stat- join

I opinion of the Court. ed that it is an abuse of discretion stan-

dard,2 we have not addressed the issue KEASLER, J., dissenting which Instead, directly. we have stated the stan- HERVEY, J., joined. dard of review without discussion. But the appropriate standard of review this agree I with the Court’s answers to the subject context ais of heated na- debate State’s first and grounds second for re- tionwide. view. But I would answer the third ground “perhaps,” and remand to the began The confusion Supreme when the Appeals Court of for further review. Court decided Daubert but did not set

In its ground, third argues the State appropriate forth the standard of review that the Appeals Court of erred because in appeal.3 Frye, Under case, the theory and tech- had “general accep- reviewed trial courts’ nique behind the ADx analyzer novo,4 are well- tance” conclusions de but under Ante, op. 701, at 30. (Tex.Crim.App.1992); Kelly, S.W.2d 708 824 S.W.2d at 569. State, (Tex. 2. Morales v. 32 S.W.3d 865 State, Crim.App.2000); Hinojosa v. 4 S.W.3d Tamarelli, Jr., 3. See Alan W. Develop Recent 240, 251 (Tex.Crim.App.1999); Griffith ments: Daubert v. Merrell Dow Pharmaceuti State, 983 S.W.2d (Tex.Crim.App. 287 Pushing cals: the Limits Reliabil of 1998); State, Scientific Clark v. 881 S.W.2d 698 ity Abandoning Questionable Wisdom 1994); State, — The of (Tex.Crim.App. Emerson v. 880 Admitting Expert the Peer Review Standard (Tex.Crim.App.1994); S.W.2d for Hicks Testimony, 47 Vand. L.Rev. State, (Tex.Crim.App. 860 S.W.2d 1993); State, Fuller v. 827 S.W.2d 1992); (Tex.Crim.App. Joiner v. n new test, Despite of abuse of discretion.11 this state Daubert standard review ment, proceeded was unclear.5 to sci the court consider journals entific Jus outside record.12 responded to the Courts confusion in majority for tice McMorrow criticized Florida, ways. various In the court re- setting forth the abuse of discretion stan Frye tained the standard reviewed the applying dard but then not it.13 He ar “general acceptance” trial court’s conclu- of gued all-encompassing that “the abuse Supreme sion novo.6 de The Florida a permit discretion standard ... does not general accep- explained Court that “the adequately court to reviewing address any particular tance issue transcends dis- legal issues” these cases advocated pute Application .... of less than a de novo a “mixed standard of review” which of tran- standard review to issue which concerning expert’s court decisions invariably individual leads scends cases to testimony’s qualifications and his relevance similarly inconsistent treatment of situated be for abuse of discretion but reviewed claims.” technique regarding decisions whether Daubert, Maryland Supreme Before general acceptance has re achieved explained had answer to “[t]he viewed de novo.14 He reasoned that question about the sci- technique’s general acceptance technique process vary entific not does community in the scientific “transcends each according the circumstances of any particular dispute” and “[ajpplication inappropriate case. It is therefore view less de than a novo standard of review question this threshold as a to an which transcends individual issue judge’s matter within each individual invariably cases leads to inconsistent treat Daubert, discretion.”8 After the court similarly ment situated claims.”15 Frye continued to follow test re- claims view novo.9 Rule de expressed confusion Federal courts also Frye, par- also after The Illinois continued follow Daubert. Sixth Circuit was ticularly torn, any panel setting formal with one forth because reasoned decision to review, simply litigants do so but there a three-fold standard of and a sec- because argue adopting panel rejecting panel did not the Daubert ond it. first applied explained test.10 that the stan- But standard review abuse-of-discretion de- People adequately that state is v. Mil dard “does not unclear. review ler, Supreme required the Illinois Court stated that scribe the standard of review Frye claims are for an the Federal Rules of Evidence for to be reviewed al, v. et 5. son Central Illinois Public Service Co. Id. 854, 63, 262 Ill.Dec. 767 N.E.2d Ill.2d State, 268, (Fla. 314, (2002). 695 So.2d Brim 6. 325 n. 1997). 43, Miller, 731- 11. 219 Ill.Dec. 670 N.E.2d at 7. Id. 32. State, A.2d Reed v. 283 Md. Id. (1978). J., (McMorrow, specially Id. concur at 738 9. See Burral v. ring). 352 Md. 724 A.2d Id. at 739. Miller, People 173 Ill.2d 219 Ill.Dec. 15. Id. (1996); 670 N.E.2d 731 n. Donald admissibility expert opinion evidence.”16 that we review de novo. On the other opinion The court set forth its prop- hand, of the ... [ajppellate review of the trial preliminary er standard: the trial court’s rulings relevancy court’s under re- 104(a) fact-finding under Rule is reviewed quirement is under an abuse of discretion error; for clear the court’s determination standard.”21 expert’s opinion whether the properly Ap- Oklahoma Court of Criminal subject scientific, technical, or other “[ajfter that, peals agreed. It concluded novo; specialized knowledge is reviewed de ... considering permanent impact of a and the court’s determination whether the judge’s decision to admit novel scien- expert’s opinion will assist the trier of fact evidence, subject tific find we we should is reviewed for an abuse of discretion.17 independent, thorough decision to an panel But the other disagreed this with simply review and not ask whether an approach, concluding that the three-tiered abuse of discretion was committed.” The standard of any precedential review lacked court, quoting the District of Columbia support.18 Nevertheless, even this second court, that, explained “[generally, the de- panel acknowledged that “the de novo cision whether or not to expert admit testi- prong has appeal some intuitive ... mony is addressed to the sound discretion particularly ... respect with validity to the of the trial court. question Where the of various types of scientific evidence.”19 general acceptance of a new scientific The court admitted that “a de novo stan- raised, technique however, propo- dard ... ensures that there are not con- asking nent will often be the court flicting pronouncements in a circuit re- jurisdiction establish the law of the garding validity methods,” of scientific cases_Accordingly, future in recogni- but cautioned that “the distinction between tion of the fact that the formulation of the principles princi- how those jurisdiction law of this quintessentially is a

ples applied are particular dispute function, engage we a broad recognized.”20 should be judge’s review of the trial determination adopted Several states hybrid stan- whether the forensic use of DNA technolo- review, dard of looking de novo at the trial gy gained general acceptance. has In do- court’s determination that a theory or so, ing only we expert consider not technique reliable, reviewing but record, evidence of but opin- also application of the particular science jurisdictions, perti- ions as aswell for an case abuse of discretion. The West legal nent and scientific commentaries.”22 Virginia Supreme Court held that “[t]he court’s determination Massachusetts also set regarding forth a dual stan- review, whether the scientific properly evidence is dard of reviewing the issue of sci- subject scientific, technical, or other entific de reviewing novo but specialized knowledge question is a application of law technique with deference Co., Steamship 16. Cook v. American 53 F.3d (6th 1995). 738 Cir. Beard, 740, 21. State v. 194 W.Va. 461 S.E.2d

17. Id. 486, (1995). 492 Jones, 1147, 18. United States v. 107 F.3d 1154 319, (Okla. Taylor 22. 889 P.2d 332 (6th Cir.1997). Crim.App.1995), quoting United States v. Port er, 629, (D.C.1992). 19. Id. 618 A.2d 635 46 evidence,

to an ruling.23 Supreme appellate the trial court’s The scientific court it depart- Judicial Court conceded that was indepen- should scrutinize the record and ing from the abuse discretion standard authorities, dently in- review the relevant courts, appellate review used federal cluding judicial opinions and scientific lit- 28 appropriate but to concluded that was erature.” validity scientific novo review decisions de During period, legal this time writers the “because a scientific meth- to and the urge rushed criticize Daubert odology vary according does the to adopt Supreme Court to a de novo stan- particular case circumstances of and be- dard of One writer review. warned a lower will cause court’s conclusion “[ijf Daubert are [for decisions reviewed applicability beyond facts the case ..., of discretion] abuse inconsistent before it.”24 concerning admissibility of decisions agreed. v. Har- Jersey New State un- go scientific novel vey, Supreme Court acknowl- state’s jurisdiction jurisdiction checked from to edged appellate that “[generally, judge. from This inconsis- judge and a trial review court’s determination of inevitably may tent standard of review ... admissibility of evidence for an abuse provide uniformity confound un- efforts discretion.”25 But the court nevertheless der the Rules.”29 concluded that review the de- termination should be de novo. court The urged Another author “courts ... [to] “[ujnlike that, many evi- reasoned other approach developing hybrid consider issues, dentiary whether the scientific com- appellate which courts review de novo munity accepts generally methodology involving general those decisions scientific dispute.”26 particular test can transcend a propositions, greater allow trial courts but that, “[njotwithstanding The felt regard particular with to the discretion position to shape trial court’s better each Another agreed, facts of case.”30 determinations, factual record make gatekeeping function arguing “[t]he important courts retain an resid- judges possess assumes that trial some concerning ual role for ad- questions experience in sophistication and mission of scientific evidence. Like ... little matters reason [but][t]here courts, appellate digest expert courts can readily judges equip can believe testimony as well as review scientific liter- This expertise.”31 themselves with such decisions, ature, judicial authori- that, “[wjhen proposed author “de novo review ties.” court concluded rulings reviewing a on the admission of of district court decision Sok, 787, Challenges Confronting Vao the New Scienti 23. Commonwealth v. Mass. 30. (1997). Evidence, N.E.2d 677-78 Harv. L.Rev. fic (1995). 24. Id. at n. 14. Note, Kesan, Jay Autopsy P. An Scienti 31. (1997). 151 N.J. 699 A.2d World, 84 Geo. Evidence in a Post-Daubert fic (1996); Faig Id. David L.J. 2037-38 L. man, al, Crystal et Check Your Ball at Id. at 620. Past, Door, Exploring Courthouse Please: Present, Worrying Understanding Evidence, 15 About the Future of Scientific Tamarelli, supra footnote Cardozo L.Rev.

47 ration, knowledge prong judges’ He ex- federal district Dau- of Daubert.” an plained to be for rulings bert were reviewed case, In that abuse of discretion.34 of scientific theories [e]xamination an methodologies whether issue Court was whether determine before they sufficiently have evolved to amount could appellate apply court a different knowledge task that to scientific is a when the district court standard of review itself to appellate lends de novo review. admits evidence versus when scientific im- Such an exercise would have broad evidence. Supreme excludes scientific The plications subsequent on of consideration notion, rejected firmly Court this conclud- litiga- methodology the same in future ing that the same standard of review rulings tion. District court the sec- in either apply should instance.35 (the require- prong ond Daubert fit Court then stated that abuse of discretion ment), requires which consideration review, appropriate was the standard of case, facts in specific still be would but the did not consider the incon- Court under an reviewed abuse of discretion cause, sistencies that standard would But de appellate standard. novo review hy- possibility nor did it address the of a findings scientific district on the brid standard review.36 knowledge prong of Daubert cre- would Joiner, employ After most courts body appellate opinions ate abuse of discretion standard of review. carefully review scientific theories and put dispute The Sixth Circuit methodologies. appellate As courts re- adopted circuit “to rest” an abuse peatedly face the same sorts of discretion standard.37 And Massachusetts evidence, adjudication more uniform at issue, switching did an on the about-face appellate the trial levels will result. its standard of review based on the Joiner addition, scrutiny In careful opinion.38 permit develop- would consideration and of distinct ment validation criteria for every But state court danced to the expert relating different Supreme appel- tune. An Court’s Arizona disciplines. technical Final- apply late court continued to a de novo ly, are also situated well acknowledging standard of review without public to consider the broad is- policy rejected Joiner.39 And Minnesota Dau- admissibility sues associated with deter- entirety in bert in its an effort to retain minations.32 de novo standard review.40 The court 1997, Joiner,33 potential General Elec. stated that “the non-uniformi- Co. v. stated, Supreme ty [gave without elabo- the law under Daubert ... it] Co., Id. American Honda Morales v. Motor 151 500, (6th Cir.1998). F.3d 515 512, 33. 522 U.S. 118 L.Ed.2d S.Ct. (1997). Case, Canavan’s Mass. (2000). N.E.2d 139. See also Tire Co. v. Kumho Carmichael, 137, 152, 526 U.S. 119 S.Ct. Garcia, 143 L.Ed.2d 238 197 Ariz. 3 P.3d State v. (App.1999). Joiner, 141-13, 522 U.S. at 118 S.Ct. 512. Tharaldson, 40. Goeb v. N.W.2d Coon, State 405 n. 16 36. See 974 P.2d (Minn.2000). 1999) (Fabe, J., (Alaska concurring and dis- senting). 48 about, concern,”41 topic they on a know little noting cause discretion

considerable for making guidance built on similar facts the admissi- “[c]ases with no for techniques scientific could offering similar will bility decisions. The result undoubt- widely disparate The results.”42 rampant edly individualized decision- “Frye-Mack”43 court its concluded that a of judges apply number making; will standard, accompanying the novo with de to general principles criteria or different review, apt “more was to ensure a permit decide whether to nonscientific objective rulings as partic- and uniform to expert testify.”48 pointed Another out to ular or techniques.”44 scientific methods judges now have that “the broad discretion Supreme Alaska Court followed experts likely

The in screening types all of will applying of discretion Joiner an abuse uncertainty among law- cause increased review, its decision standard of but admissibility yers expert of regarding the vigorous met Justice Fabe with dissent. testimony.”49 determination of contended “[t]he explained author that “there does One general proposition whether not basis for assum- any seem to be sound process vary is reliable should from any ing compe- is the less judge case to judge.”45 to case from de reviewing scientific evidence tent “a proposed hybrid He standard under judge. novo than traditional any which would review de novo we deferring judge for to the trial reason rulings validity on scientific but threshold rulings judge evidentiary is that the trial discretion case- would review abuse of reviewing has of the demeanor the benefit testing specific rulings on relevance whether performance.”46 argued the witness determine He straight it lying. abuse discretion standard Because is not witness likely would “most lead inconsistent credibility at stake witness’s similarly treatment of situated claims” evidence, underlying but “compromise in turn the in- which would not nec- methodology application, judiciary eyes in the tegrity of the judge’s give the trial observation essary to public.”47 Moreover, jur- any particular weight. isprudential policy transcending issues

Moreover, critiques Joiner were more given appropriate- case are complained facts of many. legal One writer by appellate courts.”50 gave judges ly much too resolved “[t]he Comment, deVyver, Opening the 48. 41. K. Issac Id. at 814. Keeping Lights Tire But Kumho Door Off: Applicability Co. v. Carmichael and the Id. Evidence, 50 Daubert Test Nonscientific States, (1999). Frye App. v. United D.C. Wes. Res. L.Rev. Case Mack, (D.C.Cir.1923); F. 1013 State Jr., Maddock, Note, 764, 768-69, Douglas B. Federal (Minn.1980). N.W.2d Raising the Bar on Admis- Rules Evidence: Goeb, (internal Expert Testimony: Expert Can sibility Your quota- at 814 615 N.W.2d omitted). Tire v. Car- Grade Kumho Co. Make the tion marks After michael?, (2000). 53 Okla. L.Rev. at 403. Id. Beecher-Monas, Blinded Science: 50. Erica Judges Avoid the Science in How Scientific Evidence, n. 186 Temple L.Rev. 47.Id. at 404.

49 A bifurcated standard of is not adopt review a bifurcated standard of if review unprecedented in applied directly Texas. We have the issue were it. before such a review to trial court rulings on if Supreme firmly But even Court suppress motions to evidence51 and mo- aspects believes that all of a Daubert claim speedy tions for recog- trial.52 We should on appeal be reviewed for an abuse nized that an abuse of discretion review is discretion, pre- its conclusion should not not necessarily appropriate in the context applying vent us from a different standard application of law to facts when the Indeed, in review Texas. our review of decision credibility does not turn on the or Kelly already claims substantially differs Instead, demeanor of ap- witnesses.53 an Supreme from the Court’s of Dau- review pellate court must conduct a de re- novo First, bert claims. gatek- we hold that the judge view when “the trial is in not an eeping hearing mandatory55 is while the appreciably position better than the re- Supreme optional.56 Court finds it Addi- viewing court to make that determina- tionally, proponent we hold that the of the issues, Kelly tion.” With the trial court prove evidence must admissibility by its is in appreciably position in better evidence,57 clear convincing while the determining particular whether a scientific Supreme requires proof only by a theory technique or is Although valid. preponderance of the evidence.58 Admis- credibility of the testifying expert is one sion of scientific already evidence is more in Kelly, factor, factor it only is not the difficult Texas than in the federal and the other courts. approach, factors do not Consistent with that it involve credi- is bility appropriate apply heightened witnesses. I stan- appellate believe appeal. dard of review should defer to the trial court’s credibility determination but review the abuse-of-diseretion standard validity of the science de novo. wholly inadequate Kelly the context of claims. adopt We should a bifurcated good

There is reason to believe that the review, standard of reviewing the reliabili- Supreme agree Court would with a bifur- ty of a theory technique de cated standard of As explained review. novo, reviewing application but previously, Supreme Court was not particular technique each case for an faced Joiner deciding with whether to abuse discretion. apply hybrid standard of In- review.

stead, merely the Court addressed wheth- claim, Kelly Under a de novo of a review er the same standard of review should court would be able to con- apply to trial court admitting decisions presented sider literature not to the trial evidence and trial court decisions exclud- court. It would be the court’s ing evidence. That Court likely duty would to determine de novo whether State, (Tex. Co., 51. 955 S.W.2d 56. Kumho Tire Guzman U.S. at 119 S.Ct. 1997). Crim.App. (trial judge discretionary needs authori- ty unnecessary reliability proceedings to avoid Munoz, (Tex. 52. State v. 991 S.W.2d ordinary expert's cases where Crim.App.1999). properly granted). methods is taken for Guzman, 955 S.W.2d at 89. Kelly, 824 S.W.2d at 573. 87; Id. at Stewart v. 44 S.W.3d (Tex.Crim.App.2001). Daubert, U.S. at 592 n. 113 S.Ct. Jackson, 17 S.W.3d at 672. by noting continues particular technique sional axes.”63 He valid, “ultimately way is no for the and would be able reach there any reviewing escape making determination rehable judge conscientious locate, regardless it could of authority enough effort to learn about determined it. judge whether the trial reviewed subject litigation the of the to for- matter his the mulate own views with assistance— country Courts across the have consid- experts.”64 not the the domination—of ered scientific literature outside the record conducting in a de of novo review Daubert Judge Appeals Ferren the D.C. Indeed, in cases claims.59 all the discussed depth in in Dean v. discussed issue section, previous Columbia,65 the the courts under- He that “it District noted reviewing validity stand of a scien- hearing with questionable whether tific de novo means theory technique expert legislative about issues of reviewing literature outside record. higher reveal fact Vould more reliable or by quality than is available information Despite any implications to the con- referring to submitted briefs authorities trary, courts are no better situated “[t]rial sides, cases, and, appropriate by both to meth- assess the of scientific appellate additional research at the lev- cases, ods.”60 This is because most ”66 explains, advantage el.’ As he “[t]he ... depend “[s]uch determinations do not costly likely, such a on too exercise assessing credibility on of witnesses or occasions, best, marginal at many to be Indeed, knowledge of local conditions.”61 is from away hearing and the further “judicial validity might be assessment of posited (using the the ideal model I have through written better conducted briefs highly qualified experts), the more most testimony.”62 rather than oral distorted, perhaps judge will confront discussions one of earlier on biased, presentations even and thus have topic, explains “[a] Kenneth Karst rely many to non-record primarily finds judge special training without it hard or social sci- sources for critical scientific expert’s of gather- to criticize an methods ence information.”67 from ing data or the inferences he draws Worse, experts point adds that “[t]he them. Yet are fallible. He ... of ex- they grind profes- forgotten least is that the likelihood have axes —at Garcia, 1003(consider 61. Id. 3 P.3d part of outside record as de novo literature 548, Brown, 512, review); People Cal.3d 40 62. Id. 834, (1985) (con Cal.Rptr. 230 726 P.2d 516 record); Karst, Legislative outside Peo in Con sider scientific literature 63. Kenneth L. Facts Wilds, ple 18 Cal.Rptr Litigation, 37 .2d 358 n. Sup.Ct. stitutional Rev. (although typi (App.1995) review is trial, cally to the record created at restricted limited de novo review 64. Id. at scholarly permits courts to consider treat part (Fer journals are not ises and which (D.C.App.1995) 65. 653 A.2d 320-30 Brim, record); (consid ren, J., 695 So.2d at concurring dissenting). part literature record as er scientific outside review); J., Harvey, Dean, (Ferren, 619- of de 699 A.2d at novo concur- 653 A.2d at 328 Gore, (same); State v. 143 Wash.2d dissenting) (quoting State v. Erick- ring and (2001) (same). 1978)). son, (Alaska P.3d 574 P.2d supra Faigman, at 1821. note pert testimony being superior recognized, record As the Arizona court when finding the court’s own resourcefulness in this, court does “[i]t is some- legislative highly questiona- facts is often incongruous what to call court’s ”71 quality paid ble. The experts too Nevertheless, ruling ‘error.’ that court persons often will be limited to who have concluded that logic authority “neither nor not done the most careful studies them- supports confining snapshot, ourselves to a and, any event, selves an ax to viewing picture, rather than the motion that, grind very absent skillful cross-exam- technological If advancement. the result ination, can create a record that hides the product obtained is the of invalid scientific real truth- Arguably, the more com- theory, good accept there is no reason to plex the issue ... greater the risk that simply because we fooled at the in- were hearing yield better, perhaps will no ception inquiry_Thus, survey- satisfactory, less results than non-record ing available, all information we consider sources, including judge’s own research published, scientific literature as well as data, primary course, into helped along, of decided, cases after trial.”72 by advocacy.”68 counsel’s Finally, noting it is worth that we have Additionally, consulting literature out- previously approved reviewing scientific side the record part as of a de novo review record, literature although outside the we permits appellate change court to with “judicial did so theory under the of notice.” the scientific recog- times. Several states State,73 In Emerson v. we considered sci- rapidly nize that changing “[i]n world entific articles outside the record in deter- science, of modem continuing research mining whether the HGN test was reliable. may affect the scientific community’s ac- justified approach We under no- ceptance of a technology. By novel re- “judicial tion of notice.”74 And in Mata v. viewing post-trial publications, appel- an State,75 authority we cited Emerson as late court can rapid pace account for the taking “judicial our notice” of scientific new technology. The continuing review literature outside the record. In retro- recognizes also general acceptance spect, phrase “judicial our use of the no- change between the time of trial and tice” misplaced both In appellate time of cases. review.”69 More- over, “by involving evidence, cases examining such courts additional infor- mation, appellate judicial prevent court can often take notice of the any injustice rendered particular the admission or ex- theory tech- clusion of the evidence at instances, the trial level.”70 In nique.76 these the court is (internal omitted). Id. at 330 citations (Tex.Crim.App.1994). 73. 880 S.W.2d 759 Bible, 549, 69. State v. 175 Ariz. 858 P.2d Id. at 764-65. 1152, (1993); Harvey, 1189 n. 33 699 A.2d at 620; 244, Copeland, State v. 130 Wash.2d 902, (Tex.Crim.App.2001). 75. 46 S.W.3d P.2d 1312-13 See also Hadden (Fla.1997) (f 690 So.2d Pharmaceuticals, 76. Daubert v. Merrell Dow indi ng appellate Inc., that an court "should consider 509 U.S. 113 S.Ct. general acceptance the issue of at the time of (1993) (law thermodynamics L.Ed.2d 469 trial”). appeal rather than at the time of notice); theory subject judicial properly Beasley, United States v. 102 F.3d Harvey, 699 A.2d at 620. (8th Cir.1996) (DNA testing was reliable un- der and courts Daubert could take Bible, 858 P.2d at 1189 n. 33. that); notice of Paoli PCB re Railroad Yard Erickson, (3rd Id. See Litigation, also 574 P.2d at 6-7. 35 F.3d 744 n. 10 Cir.

taking judicial notice of a fact—the fact SHANNON, Appellant, technique Willie Marcel that the or the is valid. judicial notice of the litera- taking It is not facts, applies to ture. Judicial notice Instead, judi-

authority. the courts take The STATE Texas. a theory notice of the fact that cial No. 74317. technique is valid.77 adopt I a bifurcated standard would Appeals of Texas. Court of Criminal appeal. I think review on reliability of should review the the scienti- June novo, theory or de review technique fic application par- science in the of that I

ticular case for an abuse discretion. Appeals remand to the Court would opportunity court an give apply this of review. standard reliable); 1994) (if Taylor, analysis 1997 validi was State v. technique has uncontroverted 1997) 81, (Me.

ty, by judicial (appellate inquiry Daubert can be resolved ME 694 A.2d 907 Martinez, notice); United States v. 3 F.3d judicial reliability HGN notice of of court took denied, 1191, (8th Cir.1993), 145, State, 1197 cert. 510 test); Md.App. 664 v. 106 Schultz 1062, 734, 126 U.S. 114 S.Ct. L.Ed.2d 697 (1995) judicial (appellate court took A.2d 60 (1994) (lower judicial can take notice test); reliability of State v. notice of HGN method, reliability validity of scientific of 370, 129, Bullard, 148, S.E.2d 312 N.C. 322 theory); technique or United States v. Jako (courts (N.C.1984) judicial no 381 can take betz, (2d Cir.1992) (judicial 800 955 F.2d reliable); principles are tice that scientific general acceptability could of notice be taken 663 O’Key, 321 Ore. 899 P.2d State v. specific general theory tech of and use may (1995) (validity evidence of scientific niques profiling); United States v. of DNA notice); by judicial DiPetrillo v. established (trial (2000) Phillips, 53 courts could M.J. 758 Co., (R.I.1999)(judi Dow Chem. 729 A.2d 677 judicial microscopic take hair notice scien permitted cial of well-established notice reliable); analysis parte Taylor, Ex 825 methods); Gentry v. Man tific theories (Ala.2002) (judicial can be So.2d 769 notice (W.Va. gum, 171 195 W.Va. 466 S.E.2d technique); taken of of (court 1995) judicial notice should take State, Ga.App. v. 476 S.E.2d Hawkins 223 appro validity principles where of scientific (trial (Ga.Ct.App.1996) take priate). United States v. See also Ambriz- judicial tech notice of scientific Cir.2002) (9th Appx. Vasquez, Fed. procedure recog nique or once it has been (trial judicial (unpublished) take court could courts); State nized in substantial number analysis); fingerprinting notice of Ito, (App. 978 P.2d 191 Hawai'i Causation, Torts, Eggen, Toxic Jean M. 1999) (trial judicial take notice courts could Daubert, U. Pitt. Evidence tests); After Scientific reliability HGN McGrew v. (1994) “very high (discussing L.Rev. (courts (Ind.1997) take 682 N.E.2d 1289 can judicial degree certainty” required take principles are judicial notice that scientific theory). notice of scientific Commonwealth, reliable); Johnson (trial (Ky.1999) courts could S.W.3d 4, supra. microscopic hair See footnote take notice

Case Details

Case Name: Hernandez v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 4, 2003

Citation: 116 S.W.3d 26

Docket Number: 2053-01

Court Abbreviation: Tex. Crim. App.