*1 CONCLUSION V. erred appeals court hold that the
We insuffi- evidence was holding that the conviction Appellant’s support
cient to judg- we reverse Accordingly,
arson. and remand appeals
ment of the court Appel- consider the court can
this case so other claims.11
lant’s
ALCALA, J., participating. not SOMERS, Appellant,
Aaron Texas. STATE PD-0056-11.
No. Appeals of Texas.
Court of Criminal
June Brooks, factual-sufficiency claim. Appellant’s light of address 11. On remand and in appeals need not S.W.3d court of
I. BACKGROUND
A. Relevant Facts
20, 2007,
p.m.
At 11:45
on October
police
responded
complaint
to a noise
at a frater-
nity
party. Appellant,
house
the social
fraternity,
chairman for the
informed the
officers
he
in charge
that was
and that any
further complaints could be directed to
him. Police
appellant
determined that
was
slightly intoxicated but did not detain or
question him. Police returned to .the fra-
a.m.,
ternity
at
again
house
2:00
in re-
sponse
complaint.
time,
to a noise
At that
appellant agreed to shut down the band.
police
The
appellant
found
to be more
previous
intoxicated than at the
encounter.
Police returned at 2:30 a.m. to end the
Botsford, Austin,
David L.
for Appellant. party
speak
but did not see or
to appellant
at that time.
Smith, Jr.,
Danny
Bryan, Lisa
W.
C.
A police officer who had responded to
McMinn,
Austin,
Attorney,
State’s
for
complaint
noise
was called to the scene
State.
major
of a
accident at 3:24 a.m. The
officer arrived at the scene and saw an
OPINION
pickup
overturned
truck in the road and a
grass
second vehicle in the
on the side of
KELLER, P.J., delivered the opinion of
approxi-
road. The second vehicle was
PRICE, KEASLER,
the Court in which
mately
roadway
six inches into the
over
HERVEY,
ALCALA, JJ.,
COCHRAN and
line;
fog
ignition,
headlights, and
joined.
on;
lights
hazard
were
and the vehicle was
recognized appellant
drive. The officer
present
The
case involves the admissibil
upon
the scene. Based
witnesses and
ity of scientific evidence under Texas Rule
scene,
evidence at the
the officer believed
Kelly
Evidence 702 and
v. State.1 We
appellant
driving
pickup
was
at the
granted review to determine whether the
time of the accident. The officer per-
Appeals
holding
Court of
erred
sobriety
appellant
formed field
tests on
test results are not reliable
placed
and then
him under arrest for driv-
without a confirmation test.2 We hold that
ing while intoxicated.
err.
Appeals
did
We hold
victim,
that EMIT tests are rehable under the
Briggs,
The
Michelle
was the
prongs
first two
Kelly.3
occupant
by ap-
sole
of the vehicle struck
1992).
(Tex.Crim.App.
Appellant presented
1.
correctly. She testified that she tested Briggs’s blood for six different classes of Expert Testimony drugs, and that the results indicated a Appellant testimony offered of three ex- possible positive for benzoylecgonine, or perts performed from DPS who had metabolites,” “cocaine and its a possi- and EMIT and tests on Briggs’s blood. GC/MS ble for amphetamines. EMIT test experts These testified as to their qualifi- results fall into four increasing levels of experience, drug pro- cations and test 0.3; 1.0; concentration: 0.1 to 0.3 to 1.0 to cedures, knowledge and their of the gener- 3.0, and above 3. Barton testified that the accuracy reliability al of EMIT test EMIT test results for cocaine in Briggs’s testify results. The first witness to was level, i.e., blood were in the highest third Barton, Megan employee the DPS who 1.0 to 3.0. conducted the EMIT on Briggs’s test Barton testified that DPS has a heavy approximately blood one month after the caseload and that the EMIT test is used as
blood had been drawn. Barton testified a reliable initial screening test. She testi- that she earned a bachelor of science de- protocol, fied that under DPS when EMIT Texas, gree University from the had test results are positive for a class of DPS, completed training in-house at only then drugs, is the more accurate and performed analyses has thousands of expensive more performed test GC/MS throughout her career. Barton described specific confirm “what talking we’re theory underlying the scientific the EMIT agreed about.” Barton that the manufac- performed: test and how it is turer of EMIT recommends further test- ing presence drugs to confirm the of the parts
There are two to it. You have an and that with an EMIT test alone she antigen antibody. antigen, and an could not determine how when an indi- it is to react with the drug made —class ingested many vidual cocaine or how times. drugs question. When the two are together, added there is a bond between Barton testified that the EMIT test that, antibody antigen, and the and that widely used and from both her own produce change. literature, will a color personal dealings and the she results, Briggs’s purse at appellant the scene of the accident. test offered some This additional evidence was excluded testimony on the matter. The trial court rul- court, Appeals upheld trial and the Court of ing excluding the EMIT test results was granted the exclusion. As this Court has re- based, part, at a least conclusion that view on of the EMIT test results there was no between the nexus test results alone, we will not address the additional evi- Ap- and the victim’s death. The Court of dence. peals’s opinion did not address this basis for parties engaged and the trial court also results, excluding the test so neither do we. in a discussion about relevance of the which is change,” or “color screening test. of absorbance” it to be a reliable has found that, the basic con- of the thousands of then measured to determine out She testified DPS, in the blood. drugs her career centration of the throughout EMIT tests encountered personally she had never that she found the Hawkins testified heard of Barton had positive. false presumptive EMIT test to be “a reliable thousands, out of positives one or two false I asked about test before confirm.” When hearsay from out “that is pointed but she reliability of EMIT tests for determin- Bar- personally.” analysts; other not me specifically, ing the existence of cocaine test negative ton testified breaks Hawkins clarified that cocaine case would not be Briggs’s for cocaine in quickly body in the and metabolizes down instead, positive, but indicative of a false EMIT actu- benzoylecgonine, and that into Briggs’s of how blood would be indicative benzoylecgo- ally tests for the existence of explained that preserved. She sample nine, agreed then not cocaine. Hawkins quick- cocaine is unstable and breaks down presumptive that EMIT is reliable that, knowledge, Briggs’s ly and to her been to determine whether cocaine has *5 the sample preserva- did not contain blood stating: “It is a reliable test ingested, normally used. tive that is confirmation to deter- [GC/MS] before the testify Appellant’s second witness present analites in the [are mine which Hawkins, with a forensic scientist Renae and in what concentration.” blood] the laboratory performed the DPS who Hawkins testified that she has conduct- Briggs’s blood for cocaine GC/MS ed hundreds of tests on blood sam- GC/MS year Briggs’s full after blood almost one ples following positive EMIT tests for co- that been drawn. Hawkins testified had hundreds, caine, that out of the degree in chemis- she earned a bachelors Briggs’s only is the one that has come out University Texas and was a try from the asked whether she had negative.6 When explained Hawkins toxicologist. trained opinion why an as to the test was GC/MS the underlying principles scientific case, negative for cocaine in this Hawkins performed: EMIT test and how it is responded: and its metabolites “Cocaine enzyme-multiplied stands [EMIT] in stability degrade have issues that can Basically the immunoassay technique. the human the blood tube itself outside are, it it tests principles behind case, body. particular In this there was it based drugs, for six classes of is preservative not the usual that is a relationship antigen on the between an we sample that test.” antibody, drug in the blood and an being antigen. testified that the EMIT test is Hawkins antibody And then we add the presumptive a reliable screen considered samples, relationship and if there is a or community in by toxicology the forensic reaction, that reaction is measured to let Texas and that the manufacturers de- sample. us know that that is in the screening EMIT as a device and signed confirmation tests to deter- explained antibody She then that when the recommend blood, agreed analite values. She specific mine antigens reacts with the this the results of an EMIT test alone apparent by “change “reaction” is made a cocaine, the minimum amounts of but below 6. Hawkins clarified that out of hundreds tests, only this was the first and time she had required protocol DPS before the levels "no analite at all.” However the record seen reported positive. results could be as shows that the test did show trace GC/MS is, an individ- you not indicate how or when What it does have reagents would taken, cocaine, how much was ingested ual react with a specific drugs. class of It’s a habitual or whether the individual was kind of like a lock-and-key mechanism. user, pointed but she out that the results particular A set of reagents will react test would not indicate these of a GC/MS particular with a drugs, class of that EMIT agreed facts either. Hawkins kind of like a lock key. very good screening give
is a initial test to Erwin testified that the EMIT test is a whether or not approximation as to reliable device for determining whether cocaine and that it somebody ingested has drugs there are in person’s chemicals to HGN initial comparable being good body. agreed She that EMIT was de- screening test to determine whether some- signed that, a screening device and body is intoxicated. under manufacturer recommendations and Appellant’s Kathy third witness was Er- protocol, positive DPS EMIT tests were win, the forensic scientist DPS followed a confirmation test before final laboratory performed crime who results were reported. Briggs’s amphet- test on blood for methamphetamine amine and over one 2. Scientific Literature
year after Briggs’s blood had been drawn. Erwin testified she attended Texas Appellant offered two articles discuss- University Women’s where she earned a ing the scientific principle underlying degree chemistry bachelor of science EMIT and the value of EMIT testing as *6 biology, with a minor in as well as a mas- an initial screening procedure. In one of chemistry empha- ter of science in with an articles, Taylor the authors Lu and state analytical chemistry. sis She further “drug screening that through urinalysis is completed postgrad- testified that she had a widely accepted rapid tool for detection toxicology uate courses in forensic at the potential drug of relatively use at a low University recently of Florida and had “potentially cost” and a useful method for toxicology been certified spe- forensic detecting monitoring and drug use in a by the cialist American Board of Forensic contexts, variety of including the criminal Toxicology. employed by Erwin had been justice system.”7 They evaluated the years. DPS for ten sensitivity II, specificity and of EMIT testimony The focus of Erwin’s was the that finding generated “fairly the test con- ingesting connection between cocaine and drugs, sistent results” for several includ- amphetamines and heart failure. suffering ing cocaine.8 However she also testified as to the relia- bility testing. of EMIT Erwin article, testified In the George second author de- EMIT, that she was familiar with and she enzyme EMIT “homogeneous scribes as a explained scientific basis of the test: immunoassay [technique] based on the sites,” test, competition antibody for screening binding It is a and it is based on enzyme “drug sample reactions. It is kind of—its where a concentration [a] enzyme immunoassay enzyme called test. can be measured in terms of activ- Drug Taylor, screening 7. Natalie Lu & Bruce Comparison and GC-MS: confirmation against drugs II and Online KIMS laboratories, England between U.S. and (March 2006) (abstract). Forensic Sci. Int. 106 reliability the EMIT notice of the since the took Commercially available
ity.”9 immu- the non- 1970s, many test and then concluded one of EMIT is a wide rapidly testing can detect at issue were noassays EMIT forms of substances, including drugs, illicit range of on their similarities admissible based sample vol- relatively small forensic from the EMIT test. screening initial as an Designed
umes.10 the EMIT test The trial court excluded negative samples filters out admitted results. Based on the evidence thereby reducing the positives, from trial, appellant of jury convicted analytical required work further amount of manslaughter. intoxication Punishment investigation.11 Positive toxicological years’ imprison- at twelve was assessed other tech- confirmed results are then ment, and an fine. $8000 only samples with Noting that niques. subjected to more are then positive results confirmatory techniques, George
sensitive
Appeals
C. Court
immunoassays
“rapid,
must be
states that
argued that he had
appeal, appellant
On
accurate,
Immunoas-
reproducible.”
and
sufficiently established that the EMIT
wide ac-
says
gained
as EMIT have
such
relevant,
results were reliable
extensively
are now
used
ceptance and
evidence,
excluding
trial court erred in
this
analytical laboratories.13
deprived appellant
exclusion
this
Opinions
present
Published Judicial
right
of his constitutional
not ad-
response
defense. The State’s
did
published
twelve
Appellant also offered
only that the
reliability
argued
dress
but
jurisdictions.14
judicial opinions from other
irrelevant. After
EMIT test results were
cases,
In all twelve
courts addressed
facts,
a brief discussion of
admissibility
drug testing
evidence
of the trial
judgment
affirmed the
prison disciplinary
parole
revocation
re-
respect
court with
to the EMIT test
cases,
In most of the
courts
hearings.15
sults,
that “the EMIT test was
holding
of EMIT
addressed
*7
cocaine,
but the confirmation
positive
EMIT test re-
directly and concluded that
negative.
test was
EMIT test results
GC
sufficiently
were
reliable for admis-
sults
others,
are
without a
confir-
ad-
not reliable
into evidence.
In
courts
sion
mation test. The trial court did not abuse
forms
dressed the
of non-EMIT
cases,
excluding
in
the test
re-
the courts
its discretion
drug testing.
In those
State,
lin,
(1987);
immunological
F.Supp. 102
Driver v.
George,
675
9. Steve
Position of
(Ala.Cr.App.1991);
techniques
toxicology,
Works v.
screening
clinical
particular fact to be Legal it is suffi- B. Framework cient if the evidence provides a small provides Rule 702 if scienti nudge proving disproving toward some fic, technical, specialized or other knowl consequence.”19 fact of Reyna Justice edge will assist the trier of fact to under concluded that the trial court abused its stand the evidence or to determine a fact by excluding discretion the EMIT test re- issue, qualified witness as an expert and, result, deprived appellant sults skill, by knowledge, experience, training or right present his constitutional a de- education, may testify thereto the form fense. opinion of an or otherwise.21 The thresh old inquiry determination into the II. ANALYSIS admissibility of scientific evidence is Appellant’s Argument
A. whether the evidence helpful to the trier Appellant fact, contends the Court of of helpful, and for such evidence to be *8 Appeals erred in holding that EMIT test it must be reliable.22 A trial court must State, 747, (Tex. 16. v. upheld solely Somers 333 S.W.3d reliability 753 the exclusion on 2010, App.-Waco pet. granted). grounds. State, (citing 17. Id. at 758 v. 116 Hernandez 21. Tex.R. Evid. 702. 26, (Keller, (Tex.Crim.App.2003) S.W.3d 42 P.J., concurring)). Emerson, 763; 22. 880 S.W.2d at Mata v. State, 902, 18. Id. at 758. (Tex.Crim.App. 46 S.W.3d 908 2001) (“While Rule 702 involves the ‘dual State, (citing 19. Id. at 758-59 v. Kirsch 306 inquiry reliability,' of relevance and the ‘over 738, (Tex.Crim.App.2010)). S.W.3d 743 arching subject of Rule 702 the is scientific ”) validity (quoting of the evidence at issue.’ Appellant argues also that the EMIT test State, 550, (Tex. Jordan 928 S.W.2d 554-55 results were relevant and admissible under will, Crim.App.1996)). portion 403. We not address that of appellant’s brief since the Court of 536 (6) of technique; qualifications ensure unrelia- the the ex-
act gatekeeper as a (7) experience reach of the perts) testifying; ble does not the trier and evidence applied fact.23 who person(s) and skill of the the technique question.26 on the occasion of evi proponent scientific the trial court persuade dence must first In cases the two some convincing and evidence that through clear Kelly validity of test —the of prongs the In the evidence is reliable.24 proposed theory the scientific and the underlying we held that this burden is Kelly v. State validity of the technique applying the (1) underlying that: by showing met the through judicial ory be determined —can (2) valid; theory technique is the scientific notice, thereby relieving proponent the of (3) valid; theory the is and the applying evidence producing the burden of on that applied on the oc technique properly that trial question.27 We have held courts question.25 We also identified casion not the scientific required are to “reinvent following the nonexclusive list of factors However every wheel” trial.28 some trial court could consider in deter that a actually trial court must have somewhere (1) the mining reliability: extent to which “examined the of and assessed underlying theory the scientific and tech particular the wheel before scientific other nique valid accepted are the relevant may behind it.”29 along courts ride Once community, community if scientific such validity theory the a scientific or tech of (2) ascertained; the of can be existence has in a nique widely accepted been suffi supporting rejecting literature or the un through cient number of trial courts adver theory technique; derlying scientific future (3) gatekeeping hearings, sarial courts clarity with which underlying the the judicial take may validity notice of theory technique ex scientific can be (4) court; theory upon potential technique or based plained to the rate (5) materials, technique; process, produced of the the availabili and evidence error ty prior to test and at those When experts hearings.30 of other evaluate the evaluat- ("Unreliable Kelly, case-by-case at 824 S.W.2d ... cided basis. Hartman v. State, 60, simply (Tex.Crim.App. evidence will not assist 946 S.W.2d 1997). [jury] to understand the evidence or accurate- issue; ly determine a fact in such evidence intelligent Hernandez, ("It obfuscates rather than leads to an at 29 116 S.W.3d facts.”) (quoting evaluation of Kenneth R. partic- judicial the dawn of a consideration Kreiling, Evidence: Toward Provid- type ular of forensic scientific evidence that Scientific Comprehensible ing Lay Trier With 'gatek- trial conduct full-blown courts must Necessary Reliable Evidence to Meet the Goals eeping' Kelly.”). hearings under Evidence, the Rules Ariz. L.Rev. (1990)). 941-42 State, (Tex. 24. Jackson v. 17 S.W.3d (“We 'bright Id. at 29 n. 6 have no line’ Crim.App.2000). judicial theory rule for when a scientific *9 widely accepted technique per- becomes so or Kelly, 25. at 824 S.W.2d 573. suasively may proven courts that future take However, judicial reliability. notice of its the 26. Id. gatekeeping hearing, more extensive the State, 540, experts 27. Weatherred v. 15 S.W.3d 542 n. more noted and numerous who submit, affidavits, 4 (Tex.Crim.App.2000). testify, pro- or otherwise Unlike the first two information, Kelly Kelly prongs, prong the third vide the more scientific material —whether (both con) technique pro properly applied on the that is consulted and dis- gatekeeping question necessarily hearing, de- cussed at occasion be a seminal —must decision, ing judge’s gatekeeping a trial that the “major advantages of the EMIT appellate may judicial courts take notice of quick, test are that it is relatively inexpen- appellate opinions concerning spe- sive, other and can be operated by people who theory technique.31 cific scientific or How- are experts.”36 not scientific The Lahey ever, may courts not appellate be “inde- that, court cited á report stating according pendent scientific sleuths to ferret out the surveys to conducted since 1972 on the materials,” appropriate “judi- scientific reliability of different analytical methods appeal cial notice on cannot serve EMIT testing, tests “have been support sole source of for a trial bare court among shown to be the most consistently concerning reliability.”32 record accurate drug testing methods current
use,” with recently published showing data that the percentage of correct results from Discussing C. Cases EMIT (for EMIT tests ranged from 97% amphet- accepted tests have been as reli amines, barbiturates, morphine and phen- able and admissible in courts across nu (for cyclidine) to 99% cocaine and metha- jurisdictions, merous including several fed done).37 States, eral courts. In v. Jones United The Jones court also looked to recent Appeals DC Court confronted the issue case in which a trial court from its own whether two EMIT test results jurisdiction had addressed the issue of sample obtained from the same were suffi case, EMIT reliability. In that United ciently reliable for admission into evid Roy, States v. the defendant had allegedly record, sparse ence.33 Faced with a trial violated conditions of pretrial his release the Jones court stated it that would look to by ingesting drugs, and the government’s judicial other decisions “which themselves evidence solely consisted of a series of have a trial record —or judicially notice a positive EMIT drug test results.38 The expert testimony, trial record-that reflects trial in Roy record included extensive subject tes- to cross-examination about [the timony from Murphy, Robert a pharmoki- The court test].”34 looked sever- netics expert repre- al state and federal and technical service cases that had ad- employed by Syva, sentative which dressed the of the EMIT test.35 is the cited, manufactured, In company developed, one of the cases Lahey Kelly, v. and sold the EMIT drug of New York de- and which scribed the underlying theory and tech- also installed the test equipment and nique of EMIT in detail and noted trained the technicians who using would be cases, likely reviewing
more
it
that a
(citing
including
court will
35.
Id. at 46
several
may
judi-
declare that future trial
135,
courts
take
Lahey Kelly,
71 N.Y.2d
524 N.Y.S.2d
validity
cial
invalidity
notice of the
of that
30,
(1987)).
it.39
on,
secondarily
and thus confirm
rely
of the EMIT We
bases
the scientific
regarding
to, judicial
by reference
judgment
our
He testified
how it works.40
system and
which
jurisdictions
other
from
opinions
been shown to
system had
that the EMIT
result.”44
have reached the same
accurate,
toward false
had a bias
be 98%
results,
positive
than false
negative rather
Farrier,
Eighth
In
v.
Circuit
Spence
1982,
1981
been in use since
had
prison disciplin-
held that
Appeals
Institutes of
the National
was used at
EMIT tests45
based on double
ary actions
mili-
industry,
in private
Health and
standards,
sufficiently
process
met due
agen-
law enforcement
tary, and various
expert
not call
inmates could
even where
in several
cies,
hospitals
in
well as
confirmatory
have
tests
witnesses or
treatment,
drug
purposes
for the
states
methodologies.46 The court cited
alternate
the moni-
diagnosis, and
emergency room
federal cases address-
numerous state and
Mur-
Based on
drugs.41
certain
toring of
as well as
reliability of EMIT tests
ing the
scientific litera-
testimony and the
phy’s
in which it
opinions
own recent
one of its
in
the trial court
testing,
ture on
are
noted that EMIT test results
95%
had
system was suffi-
that the EMIT
Roy held
court concluded that
accurate.47 The
in
accepted
the scienti-
ciently reliable
obviously provide some
“EMIT test results
in a trial.42
community to be admissible
fic
and that EMIT tests
evidence of
use”
“widely accepted”
have been shown to be
in Jones ulti-
Court of
DC
meet the re-
“sufficiently reliable to
test results
that “EMIT
mately concluded
process clause.”48
quirements of the due
gener-
and thus
reliable
presumptively
are
Dahm, a
later in Harrison v.
every
years
A few
into evidence
ally admissible
conclusion,
single,
that a
uncon-
argued
defendant
reaching this
In
case.”43
firmed, positive EMIT test did not suffi-
rely primarily on
“We ...
court stated:
that,
ciently
drug use and
under
jurisdic-
establish
from our own
Roy opinion]
[the
holding Spence,
tion,
Eighth
evidence in the
Circuit’s
expert
based
only when
process
due
familiar and in EMIT test satisfies
with which we are
a record
Eighth
confirmed
a second test.49
because of the
we have confidence
which
rejected
argument
this
and stated:
counsel tried the Circuit
thoroughness with which
by a
Daily
refers to an EMIT test followed
(citing Roy,
Wash. 45. This
at 45
39. Id.
2319) ("pharmokinetics” is the
test.
L.Rptr. at
second EMIT
distribution, me
study
bodily absorption,
tabolism,
drugs).
Cir.1986) (all
and excretion of
(8th
540 year sufficiently one reliable.65 The Alabama Court Appeals Court of
Second Circuit
Appeals
EMIT test re-
later.61
of Criminal
found
State,
again
v.
reliable
in Works
sults
accepted
have also been
EMIT tests
day
was handed
on the same
which
down
in several state
reliable and admissible
facts.66
nearly
as Driver and had
identical
State,
Driver
the Alabama
In
v.
courts.
held that the
Appeals
of Criminal
Court
State,
probation
v.
plaintiffs
In Smith
a
of
double
results
two routine
solely
a
revoked
on the basis of
sin-
separate
EMIT tests conducted on two
test.67
positive, unconfirmed EMIT
gle,
reliable for use
sufficiently
occasions were
Supreme
Georgia explained
The
Court of
involving
disciplinary proceedings
in prison
ruling
that when
on admission of scientific
alleged
inmate’s
of controlled sub-
an
use
evidence, a trial
decide wheth-
court must
expert
The court cited
testimo-
stances.62
underlying
procedure
er the
or
ny
toxicologist
from a research
with
stage
had
technique
reached a “scientific
of
also an
Georgia
Investigation,
Bureau
fur-
certainty.”68
of verifiable
The court
for the
Institutes on
inspector
National
explained that
trial court should not
ther
Abuse,
that EMIT test-
Drug
who testified
calcu-
by “simply
make this determination
ing equipment was considered to be 95%
com-
lating the consensus in the scientific
Spence
accurate.63
court also cited
munity” but should
the determination
base
therein,
the cases
as well as
and all
cited
trial,
presented
evidence
such as
at
opinion
Fourth
unpublished
from the
exhibits,
treatises,
testimony,
expert
Appeals holding
that “the
Circuit
jurisdic-
rationale of
cases
other
test, scientifically recognized as a
tions.69
court noted that the evidence
procedure,
some
valid medical
constitutes
at trial
testimo-
presented
expert
included
support
imposition
evidence to
of disci-
ny concerning
operation
accuracy
plinary
Relying
stip-
sanctions.”64
on the
EMIT from both
Labo-
a State Crime
in the
expert testimony
ulated
contained
ratory representative
laboratory op-
record,
accept-
as well
“general
trial
as the
erator.70 The court
that
this
concluded
testing
ances of
of EMIT
supported
deter-
jurisdictions,” the Driver court con-
evidence
the trial court’s
other
the EMIT test results were
results were
cluded
mination
EMIT test
auspices
Eighth
holding
Spence
under the
the American As-
Circuit's
vices
(AAB)
Bioanalysts
specifical-
testing procedure
sociation
"reliance on
does
ly
Proficiency Testing
noted that
the AAB
process.”
not constitute a denial
Bal
of due
Carlson,
ap-
93,
(4th
Service is one
three
services
lard v.
882
94
Cir.
F.2d
proved
the Federal
for Disease
1989).
Centers
Control).
Driver, 576 So.2d
65.
at 677.
125,
(2d
Coughlin,
v.
61.
850 F.2d
126
Peranzo
Cir.1988) (upholding
Coughlin,
v.
675
Peranzo
(Ala.Cr.App.1991).
they are reached level ADx had a similar to EMIT testing ruled that tice determine whether as EMIT.82 acceptances prongs has met two of the Kelly the first test.87 Appellant argues reliabili- Nolan, Finally, People California ty of EMIT with or without confirmation addressed appeals court of the admissibili- established, expert test was as the wit- ty ADx comparing ADx test results collectively individually nesses testi- and/or Citing other EMIT.83 numerous *14 prove by fied to to facts sufficient clear cases, the court noted both tests use (1) convincing and that: the un- evidence “well-accepted immunoassay scientific the valid; derlying EMIT is theory scientific of urine,” drugs in and technique to detect (2) technique applying theory and the the ADx had a level of reached concluded EMIT argues of is valid.88 He further general acceptance in the com- by that this conclusion was buttressed the munity.84 admission of two scientific articles and clearly The case law demonstrates twelve EMIT. addressing cases We widely used testing EMIT is and has been agree. accepted sufficiently as reliable repeatedly for admission into evidence in both state Acceptance Underlying The of the courts.85 and federal Theory Technique and Scientific by Community the Scientific Kelly
D.
Test
expert
testimony
The
witness
demon-
reliability
testing
of EMIT
is
underlying scientific
strates that the
theo-
impression
of first
in this
issue
Court.86
ry
technique
and
of the EMIT test
legal
Under
the
framework discussed
are
above,
accepted
we look to the trial record and to
as valid
the accredited DPS
at 654.
reliable
meet the
of the
to
standards
Due
Clause”).
Process
Cal.App.4th
Cal.Rptr.2d
116
331
95
Hernandez,
But see
116 S.W.3d
41-42
Div.2002).
(2nd Dist. 6th
(Keller, P.J., concurring) (discussing reliabili-
ty
testing
compared
types
of EMIT
as
to other
Penrod, Carter,
(citing
and
84. Id. at 334
testing,
noting
of
and
Spence).
litigated
extensively
has been
jurisdictions).
before fact-finders in other
Johnston,
85. See also Petition
109 Wash.2d
(1987) (single positive
appellant together pervasiveness Explained *15 can be to the Court EMIT in law testing of the case demon- Appellant’s experts clearly explained the theory the underlying strate that and underlying theory technique and of EMIT widely of EMIT technique the test are ac- the testing to trial court. From their tes- cepted greater as valid in the timony, the trial court could understand community. The articles discuss EMIT as that EMIT screening is a test based on many immunoassays one of the that have enzyme experts reactions. As the ex- gained wide and are interna- acceptance plained, certain will only antibodies react tionally analytical used in laboratories. particular with a of drugs class of The various courts in the cases cited have —“kind loek-and-key like a mechanism.” Antibod- testing widely found that EMIT is used samples ies are added to blood placed in general accep- and has reached a level of the EMIT device and reactions are made cases, tance. In one of the the DC Court apparent by changes. color These reac- noted that since 1981 or tions are indicative of the presence of one EMIT has been in use at the National specific drugs. of six classes of The reac- Institutes of Health in private and indus- tions are then measured to determine the try, the military, and various law enforce- basic in drugs concentrations the blood. agencies, ment well in in hospitals as several states for the purposes 4.The Potential Rate of Error
treatment, emergency
diagnosis,
room
and
Technique
of the
monitoring
drugs.89
the
of certain
expert testimony
at the Rule 702
Sup-
2.The Existence of Literature
hearing suggests
potential
rate of
porting
Rejecting
Underlging
the
very
error
low. Bar-
Theorg
Technique
Scientific
and
ton testified that out of the thousands of
hearing, expert
At the rule 702
witness EMIT
that
performed
tests
she had
at
DPS,
agreed
sup-
Barton
that there is literature
personally
she had never
encoun-
porting EMIT as a reliable screening
positive.
test.
tered a false
Hawkins testified
Indeed,
noted,
previously
performed
as we
the arti-
she had
hundreds of
by
cles
appellant
following positive
offered
discuss the value
tests at DPS
GC/MS
suggest,
technique
e.g., Lahey,
record to
that the EMIT
90. See
524 N.Y.S.2d
518
927; Jones,
46; Jensen,
properly applied
was not
in this case.
N.E.2d at
reports, testified as Appellant’s experts cited, EMIT tests are of the eases records test reliability of the EMIT validity and testing specif When over 95% accurate.91 subject were to cross-examination and cocaine, one re ically presence for the many of the Additionally, the State. are 99% acc EMIT tests stated that port upon expert in the cases cited relied courts error is rate of potential This urate.92 technique from of the EMIT evaluations the HGN than that of significantly lower included a experts These their records. reliable in recognized as which we phar- v. State.93 representative service Emerson technical compa- expert employed mokinetics although the note that We manufactures the ny developed negative, case was Briggs’s for cocaine test,94 toxicologist with a research suggests record evidence on the Investigation who Georgia Bureau of of a false indicative this result was not the National inspector that was also Barton testified EMIT test. Abuse,95 repre- presence Drug EMIT results indicated Institutes Briggs’s blood that cocaine metabolites laboratory operator from sentative and of concen- highest the third level fell into Laboratory.96 Georgia State Crime *16 test was conducted tration. GC/MS Briggs’s blood year than one after more Qualifications of the 6. The Hawkins Both Barton and
was drawn.
Testifying
Experts
quick-
breaks down
explained that cocaine
negative
Barton,
ly in the blood and
experts,
appellant’s
All three of
likely
in
case could
be
Briggs’s
test
Erwin,
Hawkins,
testimony
provided
GC/MS
preservative
the absence of a
attributed to
above.
relating to the factors discussed
sample. Significantly,
Briggs’s
in
blood
reason,
qualifica-
we look to their
For that
that the
test did
the record shows
GC/MS
reasonably
assurance that we can
tions for
Briggs’s
in
in fact show traces of cocaine
pronouncements.
their
rely on
time, but
passage
even after this
of
blood
a bache-
Barton testified that she earned
required
the minimum
at a level below
University
degree from the
lor of science
reported
positive.
protocol
DPS
to be
in-house train-
completed
Texas and had
negative
suggests
This evidence
DPS,
taking writ-
ing at
which consisted of
in
not reflect
this case does
GC/MS
behind
learning
tests and
the theories
ten
accuracy of the
upon the scientific
analyses performed.
the instruments and
test.
45-46;
Jones,
of intoxication
e.g.,
rect determination
77%
testimony relating to the factors discussed join majority *17 I opinion the with the un- above. derstanding assessing only that we are the expert testimony, litera- scientific general scientific of an EMIT ture, and case law before us demonstrate addressing question test. We are not the accurate, highly that EMIT is has posed by Judge Meyers Judge and John- error, widely a low rate of and is accepted concerning relevancy son the of this EMIT extensively pre- used as reliable disputed appellant’s test to a issue in trial. sumptive presence drugs. screen for the We are not whether addressing such an This evidence leads us to conclude that unconfirmed test would be admissi- validity underlying theory the of the ble purported when offered to show some technique sufficiently of EMIT has been connection between the results of the established. that single, We find even a EMIT test and the accident victim’s cause unconfirmed EMIT test is scienti- reliable addressing are not fic evidence the death. We the ulti- Kelly that meets first two prongs. admissibility mate of this “unconfirmed”
EMIT test into evidence. And we are III. certainly addressing question CONCLUSION not the whether the trial court abused its discre- reliability inquiry The function of the in excluding tion this evidence. Those are Kelly under is State to assist trial courts entirely questions distinct from the one weeding “junk out so-called science” so questions that we resolve. And those are only that with a basis in evidence sound methodology is admitted. The not before us. MEYERS, J., by the exclu- dissenting. Appellant was harmed Therefore, the EMIT I sion of test. would majority that EMIT agree I with the holding appeals. affirm the of the court of a confirmation tests are reliable without test, analysis but do not believe JOHNSON, J„ dissenting. Here, case. there necessary
was this victim, the Michelle was no evidence that the Appellant seeks have results of The trial Briggs, died of a heart attack. unconfirmed EMIT test admitted as evi- to exclude court was within its discretion complainant dence that the in this case the EMIT test results because the rele- high amphetamines on cocaine and the is What questionable. vance of results death, the time of her thus she was re- attempting to do is show Appellant the is for the collision and her sponsible resulting the cocaine test indicates that the are a death. There number of reasons to best, attack. At the victim died of a heart affirm the ruling appeals court of may cocaine only test could show that, here, presented the circumstances have caused a heart attack. But there is of an EMIT confirmed or results absolutely no evidence in the record re- unconfirmed, are not admissible. victim a heart flecting that suffered what we know about the com- This is Allowing attack before the collision. it plainant’s sample: blood was drawn at admitting evidence would be like ballistic 21, 2007, some time on or after October results when the facts indicate that 25, 2007; and on or before October it was Thus, victim to death. was stabbed not in the appropriate gray-topped test the trial court not abuse its did discretion. (which fluoride) tube contains sodium majority should have conducted a blood; proper preservation of the the tube analysis. Judge harm As Keller Presiding anti-coag- contained the blood and an “Except stated in v. State: for cer Cain ulant; sample by was received DPS- tain federal constitutional errors labeled Austin on October delivered Mat- Supreme the United States Court as Ford; testing by thew it was taken for ‘structural,’ error, no whether it relates to later, Megan Barton about one month jurisdiction, plea, any voluntariness of a 21, 2007, subjected to an November mandatory requirement, categori other date; EMIT test on or after that it was cally analy immune to a harmless error (GC) *18 subjected gas chromatography to (Tex.Crim.App. sis.” 947 S.W.2d 23, 2008, Renae Hawkins on October about 1997). majority failed to consider the drawn; year one after it was the results by the harm caused exclusion of the test the two tests did not match. results. This is what we do not know about the Even if the Court deems the EMIT test here, complainant’s sample: blood who drew the to harm- be relevant error was drawn, blood, where it was when it was Although less. the results of EMIT tests drawn, may be admissible without a confirmation and what conditions the blood was test, subject to after it drawn and before it the evidence here did not indicate was that the victim died of a heart attack. It is reached DPS. What version of the EMIT unlikely analysis that a Matthew harm would show test was used? Who is Ford? manufacturer, Syva, company. “drug- a 1. The at lest three tical It describes EMIT as makes EMIT, d.a.u., EMIT and EMIT II. assay.” http://www.medical. of-abuse versions— Syva part Diag- is now of Siemens Healthcare siemens.com/siemens/en_GLOBAL/gg_diag_ nostics, Inc., part pharmaceu- of the German sample? him the gave Who blood Where increased risk of a heart Appellant attack. it person get refrigerat- produced did that it? Was has not evidence of a relationship temperature? At what How hot ed? did between drug the amount of in blood and get refrigerated? long? intoxication, it if not For how as he must if he desires to use days a gap up A to four considerable drug-detection of a screening result unpreserved of time for whole period to prove complainant test that blood, and there is no established chain of high on amphetamines cocaine or or died custody. Just on the basis of what we from a heart attack instead of from the sample pere- don’t know about the and its collision..
grinations, correctly the trial court refused Scientific tests must appropriate also be to admit the test. to Generally, circumstances. one
But there are more reasons to exclude would not demand a test for fingerprints in designed results. EMIT is and investigation solely a charge of fail- a screening only. sold as test Each time ing signal Syva, a left turn. response appellant get tried to either Barton or FAQ to a drug-of-abuse uses the —who testify Hawkins to that an EMIT test is immunoassays why and —answers “determining reliable for the existence of “[m]ajor users EMIT drugs-of-abuse as- drugs,” always the answer was stated in says hospital include laboratories test,” terms of reliable as a “presumptive decrements, emergency drug and alcohol screening,” an “initial or a “screening programs, treatment parole probation test,” subject to confirmation GC and agencies, prisons, programs, work-release (MS). Syva, mass spectroscopy the manu- military, U.S. security and medical or facturer of the EMIT notes that departments public pri- institutions and “provide positive EMIT tests either industry.”5 vate There is no mention of results, negative indicating presence of use in forensics. Given that EMIT tests ' absence of a detectable drug.”2 EMIT are designed and manufactured as a d.a.u. and EMIT II give, “can addition device, screening Only makes sense. results,
to positive/negative data that can satisfy forensics must the standard of be- be used to estimate the approximate con- doubt, yond a reasonable while the listed drug centrations of metabolites “major any users” are concerned with indi- sample.”3 in a But we don’t know what then, Syva, cation of use. Even in re- test was used. a sponse FAQ necessary it to con- —is Scientific evidence must not be firm positive responds, reli- a “The result — able, notes, it Syva drugs-of-abuse must be relevant. “A EMIT provides only ... necessarily result does not preliminary analytical test result. A more intoxicated, mean that the individual is specific alternative chemical method must since there is relationship no established be used to analytical obtain confirmed *19 drug between the amount of in chromatography/mass the urine result. Gas spec- (GC/MS) troscopy and intoxication.”4 Nor does there preferred seem is the confir- added). any matory be correlation between the amount (Emphasis method.” And Syva the blood and intoxication or an the pamphlet about EMIT test is Id. FBAs/files/Drug_Testing/Education/0701518- l_EMIT_Abuse_FAQs_SJ_FINAL.pdf UC Id. Id. only presump- in Texas as community with urine concerned
clearly primarily tive screen? using mention does it testing; nowhere research is Outside EMIT test on blood. (Hawkins): Forensically, yes. A assays on urine.6 heavily weighted toward any for other Q: Forensically; not thing? that requires pre- protocol DPS Written con- results be EMIT
sumptively positive A: No. EMIT GC/MS, if a by firmed in forensic Q: There is a difference confirmed, forensic scientist is not Right? EMIT. other uses of testify not may the test performed who very immunoassay test is A: Yes. the results. court about drug testing employment for common protocol the DPS has a Q: Okay. Now testing. EMIT test as a screen- only to use the that is the scienti- ing device because testing and Q: it is used—EMIT Also EMIT; it way is fically proven to use things operat- like thing-in that sort of not? when quick for answers ing rooms (Barton): Yes. A emergency pa- room they’re treating that in a clinical things
tients and like testify- comfortable Q. you feel Would setting? in their somebody had cocaine ing that I’m told. A: From what upon an unconfirmed system based Q: completely But different test, a con- actually where there’s you setting. the forensic Would from says negative? firmation agree? No, I not.
A. would A: Yes. say it would be Q: you Would toxicology com- Q: for the forensic So any conclu- scientifically proven to draw Texas, the EMIT munity in the state of at all? sions from this EMIT test test, reliable as a accepted is not con- any I would not draw A: itself, unconfirmed, in and of to show just with EMIT. clusion any presence drug. literally can draw no con-
Q: And we A: Correct. scientific, any acceptable clusions to a judge’s gatekeeper One a trial roles is just scientific standard based case, In this admissibility of evidence. the result of this test EMIT test and admirably. He judge performed the trial alone. that, testimony while “re- refused to admit (Barton): A No. confines of the within the narrow liable” not consid- guidelines,
manufacturer’s as suffi- by the manufacturer or DPS assumption for ered Q: pretty Is it a safe be forensically; it must ciently consid- reliable that the EMIT test is this Court prefer- accurate toxicology confirmed more ered reliable the forensic urine.”). In its brochure on its irían e.g., http://labmed.yale.edu/Images/ 6. See 20EMIT_tcm45- studies, tests, 21 of Syva at least 20by% lists 30 20DAU% Urine% (“The One is known to Hospital which were done on urine. 9309.pdf Yale-New Haven *20 by assay Three are in-house studies be on blood. Emit D.A.U. Cocaine metabolite competitor. I was an EMI-test homogenous enzyme immunoassay intended Siemens or body fluid was used analysis benzoy- unable to discover what qualitative for use (the cocaine) remaining studies. lecgonine in hu- in the metabolite of effect, appellant In wanted some indeterminate time in able some indeter- GC/MS. to use the EMIT test “off label.” And the minate amount had no proba- relevance or custody chain of did not exist. tive value. The trial judge correctly ruled that the unconfirmed EMIT test would not ruling may The trial court’s also have admitted, be ruling and that should be require- been influenced the relevance affirmed. Syva in its EMIT bro- ment. indicates benzoylecgonine, chure that the metabolite respectfully I dissent. actually
of cocaine that is detected test, system is retained in one’s days.
2-4 Both Barton and Hawkins testi-
fied that EMIT could not reveal ingested,
when cocaine how it was was
ingested, ingested, how much was how cocaine,
many times the user had used user, frequent whether the user was a In re XL SPECIALTY INSURANCE whether the user had overdosed. Even Cambridge Integrated COMPANY and considering the unconfirmed results of the Inc., Group Services Relators. complainant could have No. 05-10-01067-CV. ingested days cocaine 10 minutes or four before the collision. Texas, of Appeals death, trauma, The cause of blunt force Dallas. cocaine, does not correlate to use of but it Oct. does correlate to a violent collision be- tween two automobiles. The state’s colli-
sion reconstruction witness testified that
the complainant’s car was struck from the
rear while it in gear stopped
the shoulder of the road with the left tires Brenner, Jury David Burns Anderson & fog
on or close to the white line. With its Brenner, L.L.P., Austin, for Relators. pointing tires straight traveling ahead and hour, per right at about 60 miles front Raizner, LLP, Doyle, Doyle Michael P. appellant’s truck struck the left rear of Houston, Party for Real in Interest. the complainant’s car with no indication of MOSELEY, any maneuvering LANG, avoidance or hard brak- Before Justices ing point impact. before the About half MYERS.
the width of each vehicle was within the
zone of Even if impact. complainant OPINION MEMORANDUM ingested just impact, had cocaine before it Opinion by Justice LANG. could have no relevance in a crash in which literally appellant up complainant’s ran Relators contend the trial court erred tailpipe, causing violently ordering her car to rotate them to produce certain docu- quarter 180 and his car to use her left rear ments. facts and issues are well panel spring as a with enough parties, board force known to the so we need not re- 5000-pound to launch his truck into a dou- count them herein. Based on the record us, layout ble with a somersault full twist. In before we conclude relators have not evidence, they face of such cocaine use at shown are relief entitled to the re-