*1 The STATE of Texas ESPARZA, Appellee.
Carlos
No. PD-1873-11. Appeals
Court Texas.
Oct. *2 TX, Lucas, Paso, Appel- El for
James D. lant. Monsivais, District At- J. Assistant
Joe McMinn, Paso, State’s torney, El Lisa C. Austin, TX, Attorney, for the State. OPINION J., PRICE, delivered the WOMACK, JOHNSON, in which Court ALCALA, JJ., COCHRAN, joined. and Following his arrest for the misdemean- intoxicated, the driving or offense of while a motion to “all appellee filed illegal acts evidence seized as a result of Specifically, alleged he state.” that the circum- illegal his arrest was testing which breath stances under was conducted blood-alcohol concentration the results obtained rendered of the Texas purposes of Article 38.23 pre- At a Procedure.1 Code suppress, trial on the motion testimony one presented from arresting officers and then rested. appel- trial court determined that the legal, lee’s arrest was but it nevertheless granted appellee’s motion State failed explicit “[t]he on the basis regarding present any testimony appealed, test The State breath results[.]” Eighth reversed Appeals Court ruling, holding the trial court’s legal and that the had arrest was any illegalities failed to establish way the breath-test results were obtained.2 granted appellee’s petition for dis- We his conten- cretionary review to examine art.'38.23(a) ("No against the trial of crimi- the accused on 1. See Crim. Proc. Tex.Code case."). per- by an officer or other evidence obtained nal any provisions of the Con- son in violation of Texas, or of stitution or laws of the State (Tex.App.- Esparza, S.W.3d 276 2. State v. United States the Constitution or laws of the 2011). El Paso America, in evidence be admitted shall intoxicated, tion that erred to be he sum- failing uphold court’s as moned “a DWI STEP unit” to the scene to any theory applica- sobriety “correct under conduct field testing.5 In its writ- affirm the court of findings law, ble to the case.”3 We ten fact conclusions of *3 judgment. appeals’s requested the State as the losing party after the trial court granted the AND FACTS PROCEDURAL appellee’s motion to suppress,6 the trial POSTURE expressly court found that Rivas’s initial appellee contact with the was a lawful In the Trial Court “encounter,” that the gave odor of alcohol at the Having stipulated outset of the suspicion Rivas reasonable investigate hearing on the motion to suppress further, and that the addition of further appellee had been arrested without a war- indicia of intoxication supplied probable rant, proffered the State as its wit- cause to arrest the appellee for driving officer, arresting ness the Officer Ruben while particular intoxicated. These find- Department.4 of the El Paso Police Rivas ings and conclusions are not presently in that, Rivas testified on December issue. patrol partner up he and “rolled on an his found, however, The trial court also just, apparently, accident that looked like State present any “[t]he failed to testimo- just sitting occurred.” The was ny regarding the breath test results[J” the driver’s seat of one of the cars with providing basis, Without a supporting legal the still on. He ignition admitted that he the simply that, declared driving had been and had struck the sec- “therefore, those results were passenger suppressed ond car from behind. A from by the From the second car confirmed this to the offi- Court.” this we think it fair to assume that strong cers. Rivas detected a odor of court did not sustain appellee’s per- appellee’s alcohol on the breath and the motion son, “red, speech, glossy” eyes, slurred the basis of his contention that his and, car, appellee got when the out arrest illegal. of his Nor did the trial court “swaying” gait. Because Rivas believed sustain the motion to on the dis- (recognizing appel- supervisor,” 3. See Id. at 282 that "[a]n "intox and had him "on call.” uphold late court must a trial court ap- But when this unnamed witness failed to reasonably supported by that is the record pear phone, and did not prose- answer his the any theory appli- and is correct under proceed cutor offered to with Officer's Rivas’s case”). cable to the testimony requesting one-day while continu- produce missing ance to his witness. The Having stipulated, thus the State assumed explicitly trial court did not rule on the the burden to establish that the arrest was continuance, request simply State’s com- otherwise reasonable for Fourth Amendment menting: "Okay. get Let’s started.” See, purposes. e.g., Torres v. ("The (Tex.Crim.App.2005) S.W.3d 5. The record does not indicate what the acro- proof sup- initial burden of on a motion to for; nym "STEP” stands nor does it reveal press evidence on the basis of a Fourth sobriety the the field results of tests. Amendment violation rests with the defen- dant. The defendant meets this burden Cullen, 6. See State v. demonstrating that the search occurred with- Thereafter, (at (Tex.Crim.App.2006) request out warrant. the burden shifts prove losing party to the state to suppress proceed reasonableness of the in a motion to search.”) (citations omitted). warrantless ing, required express the trial court is to enter law). findings hearing, prosecutor At the fact start of the and conclusions of subpoenaed announced that he had also Appeals In the Court of irregularities alleged certain
crete basis test the breath in the course contended that the appeal,9 On the State render results claimed evidence of the circum- produce burden to there- illegally obtained and testing of that which the breath-test stances under Instead, it is suppression.7 subject to fore rightly posited, obtained is sults were trial reason that apparent appellee, prosecutor, with the but with sup- motion to appellee’s granted of the motion to proponent court who was the simply case, results was press being the breath-test That suppress. produce any grant failed court abused its discretion because failure *4 evidentiary hearing to based motion evidence of satisfy produc- under which the to a burden circumstances State show the not reside with the State. tion that does were obtained.8 breath-test results the Fifth and Four- appellee had course of law under suppress, to 7. In his motion States teenth Amendments of the United alleged: Constitution, Article Section 19 of the defendant was Because the 5. Constitution, arrested, and Article 38.23 of the Texas there was no detained but not taking Procedure. to the of a breath Texas Code of Criminal deemed consent 724.011, Tex. specimen under Section testimo- (Vernon). 8. At the conclusion of Officer Rivas's The Transp. Code Ann. officers abruptly: ny, give ended somewhat to the defendant the also failed warning statutory under Section quired 724.015, right. your next THE COURT: All Call (Vernon). Transp. Code Ann. Tex. you, Thank officer. witness. and the the defendant's breath test Thus Well, Your Hon- PROSECUTOR]: [THE analysis concentration breath alcohol or, point I'm that we need at this not sure suppressed the defendant’s as should go any to further. We have established taken in violation of the defen- breath was was, know, you rea- now that there a valid rights. The defendant also did not dant’s the defendant. son for encounter with voluntarily, knowingly, intelligently They investigating a car accident. were sobriety and the consent to the field test established, know, you we’ve And so breath test. stop, basically. reason for the We have Additionally, the defendant's breath probable stop. cause for the specimen taken within a reason- was not Now, you enough point, have de- at this period Additionally, there is able of time. they whether or not termination to decide if, way at the time the to determine right pretty We’re much had a to continue. test, defendant took the breath his breath done. peaked concentration level had alcohol your COURT: Call next witness. THE rising declining. it was The whether try- point I'm The [THE PROSECUTOR]: the de- defendant took the breath test after make, Honor, you ing is even if said to Your stopped was that there is no [so] fendant arrest, illegal point that it was an at this way what the defendant's to ascertain then what does that mean— was at the breath alcohol concentration you going to call a allegedly Driving THE COURT: Are stopped he time witness or not? While Intoxicated. Well, Furthermore, just pre- I'm ask- PROSECUTOR]: the state did not [THE necessary, specimen. ing you The think Your Honor? serve Defendant’s breath it’s Intoxilyzer granted. a into which the defendant blew Motion's THE COURT: Honor, pre- specimen capability had the to I’ll breath Your PROSECUTOR]: [THE witness, independent samples permit trying to make serve breath but I’m call another testing by the defendant. Destruction point— specimen the defendant the breath denies All rise. THE BAILIFF: potentially opportunity to discover ex- (the 44.01(a)(5) Proc. art. 9. See Tex.Code Crim. actions culpatory and the state's granting rights may appeal a motion thereby State an order have violated the defendant's evidence). process due discovery and due and, appeals agreed having specific objection, The court of the court appeals theory applicable “found no of law to the did not find such support case that will the trial court’s or- record14—and neither do we. results[,]” suppressing the breath test der petition review, In his discretionary
reversed court’s order and re- argues that the court of ap- for further proceed- manded cause peals erred to him require to have raised ings.10 his alternative argument at the motion to however, suppress hearing before he could time invoke it appeal, For the first on theory applicable law to the case on appellee began argue that there was appeal. granted We appellee’s petition yet another to the take a closer look at his contention that justify case that would the trial court’s the court improperly utilized suppress: on his motion to principles procedural default to deter- results could be excluded be- mine whether his alternate “legal theory” cause the State failed to their establish under Rule even though scientific under Rule 702 of the identified for the first time appeal, Texas Rules of never- Evidence.11 court of *5 theless be regarded as “law appeals disagreed, applicable to rejecting this as an al- the case.” legal theory ternative appellee because the
had not raised it in the trial court—the ANALYSIS
appellee “never used the ‘reliability’ words ‘accuracy,’ or and he never referred to We have consistently held that a Utilizing language Rule 702.”12 and case appellate first-tier reject court should an law pertaining principles procedural appellant’s claim of reversible error on default, appeals held that ad- direct long so as the trial court missibility of the correctly results as a rejected any theory it “on of law reliability function of scientific case,” was not a applicable to the even if the trial theory applicable to the case be- court did not purport rely on that theor appellee cause the y.15 did not raise it at the Professors Dix and Schmolesky call “objection rule, trial court level in plain, this the Calloway after this Court’s unambiguous language, so that both the in Calloway v. State.16 Under the understand, rule, trial court and State could Calloway prevailing party at the guessing, specific without nature of his trial court level need not explicitly have take, objection then necessary, could raised that alternative in the court appropriate responsive action.”13 Al- justify appellate below to rejec court’s though Or, claimed that he made appellant’s tion claim.17 as Pro Esparza, supra, (citing 10. 284-85. 16. Id. at 1108 (Tex.Crim.App.1988)). 651-52 11. Tex.R. 702. Evid. Thus, 17. we think that the court of gone have too far when it observed: Esparza, supra, at 282. 12. case, In the instant the "theories of law Id. to the case” are limited to those 13. appellee] theories of that [the exclusion of court, fered to the Id. because a trial court may properly only exclude evidence insofar George Schmolesky, E. Dix & party precisely timely John M. 43A requests as a it do so. See Willoverv. Texas Practice: Practice and Proce- (3rd ed.2011). § 53:111 (Tex.Crim.App.2002). 845-46 n. 4 dure it, objec- raises an of that evidence Schmolesky opponent describe Dix and fessors or the defen Rule 702. It is “[o]nce it the State tion under “an appellee [be objects ... obligation raise the evidence party opposing has below] dant in order to trial court the burden of proponent contention bears [that] in some sense contention admissibility.”20 Alloca- ‘preserve’ demonstrating its The court appeal.”18 for consideration respect with to scientific tion of the burden the so- eschewed in this ease of appeals Rule 702 should reliability as a function of rule,” however, effective “Calloway called a pretrial in the context of be no different the Rules of Rule 702 of concluding that ly than it is when motion to “theory not constitute did Evidence trial. the course of during issue is raised not in case” —at least to the law applicable hearing, pretrial trial or in a Whether at sup motion to pretrial of a the context (as of the breath-test proponent hearing, that attendant press evidence here) course, can, be made to results conceivably put the State even nowhere reliabili- satisfy its burden to demonstrate on notice that satisfy that called ty. But is not question was in results of the breath-test (as until unless and burden their scientific challenge to based on a specific made a opponent) has Ultimately, agree. we reliability.19 scientifically results are those test (perhaps) until unreliable trial, proponent of scienti At court, gatekeeper as the capacity its upon to typically called fic evidence is admissibility of scientific pred as a empirical its establish sponte call it to do so.21 until should sua unless and icate to admission *6 reliability under presumably rule for scientific supra, at 282. The Esparza, Dissenting Opinion at It is 702. 95. require appellee to ex- Rule typically not does certainly we held in Granados v. of law in true that pressly raise his alternative 217, State, argue successfully (Tex.Crim.App. in order to 227 the trial court 85 2002), long record is sufficient- Evidence do on So as the that the Texas Rules of appeal. ly developed support suppression hearings. a correct The Texas apply well to in not “theory apply to an alternate do not at Rules of Evidence likewise case,” express- appellee prior need not have hearings, to or dur whether conducted trial, Nothing ly admissibility in our ing relied it at trial. of to determine otherwise. reliability. in Willoverholds a function of evidence as scientific 294, State, (Tex.Crim. 297 S.W.3d 297 Hall v. Schmolesky, 43B George 18. Dix & John M. E. J., (Price, n. con App.2009); id. at 299 & 3 and Proce- Practice Texas Practice: 104(a) curring) (citing of Evidence Texas Rules 56:135, ed.2011). (3rd § at 461 dure that, proposition because the rules of for the admissibility govern the evidence do not 702; Esparza, supra, at 282. 19. Tex.R. Evid. hearing determine the admis evidence at a evidence, apply sibility Rule 702 does not Robinson, & Co. v. 20. E.I. du Pont de Nemours hearing whether scientific in a to determine (Tex. 1995). See Shaw v. 923 S.W.2d 557 State, Kelly v. 824 S.W.2d evidence satisfies State, (Tex.App.-Houston 656 1992)); (Tex.Crim.App. Hernandez Goode, ref’d); pet. Steven [14th Dist.] (Tex.Crim.App. n. 11 III, Sharlot, Guy Wellborn & M. Michael Olin 2003). directly never ad While we have the Texas Rules of Texas Practice: Guide to judge question whether a trial dressed the ed.2002). 702.7, (3rd § at 73-74 Evidence admissibility challenge of scientific may made it clear sponte, we have evidence sua dissenting Judge Meyers opinion, In his made, that, challenge has been once a appellee required "was not maintains questions expert evidence, "may trial court ask apply which do not cite rules of information, witnesses, request ask for more suppression hearings, for the at order briefing, clarification con- or seek judge evidence— additional to review” the blood test case, In this as the court of cor- 38.23 of the Texas Code Criminal Proce- observed,22 rectly dure. Nowhere did it nothing happened purport at the to request the trial court to make a pretrial ruling alert trial court level to the State that the exclude results on the reliability of the basis scientific breath-test evi- of evidentiary inadmissibility any evi- dence, a function as of Rule was in —or basis, dentiary much less Rule 702 and play hearing pretrial at the on the motion scientific unreliability. No mention was evidence.23
made of Daubert or Kelly,24
other
fact,
In
far from it.
appel-
authority
holding
the breath-test
lee’s written motion to suppress exclusive
inadmissible,
sults to be
opposed
suppression
ly raised issues of
suppressible,25 Nor did the appellee say
obtained
invoking the Fourth
anything
pretrial
hearing
may
exclusionary
Amendment’s
rule
reasonably
and Article
be construed to be an invoca-
cerning
(1993);
the scientific
the art
Kelly
state of
L.Ed.2d 469
particular
reliable sources in the
(Tex.Crim.App.1992).
field.” Her-
S.W.2d 568
nandez, supra. But neither the fact that the
may
gatekeep-
take such an active
25.At
the outset of
suppress,
his motion to
ing
role nor that fact that Rule 702
"respectfully
does
this
move[d]
Court to
admissibility
limit the
of evidence in a
all evidence seized as a result of
admissibility
illegal
to determine the
by
scientific evi-
acts
alleged
the state.” The first
proponent
illegal
dence means that the
of that
arresting
scien-
act was
without
satisfy
cause,
tific evidence must
suspicion, probable
his burden to estab-
reasonable
or a
warrant,
lish
of that evidence before he is
in violation of the Fourth Amend
I,
fairly
by
called
to do so—either
ment and Article
Section 9 of the Texas
opponent
IV;
of the evidence
court.
Constitution. U.S. Const.
amend.
Tex.
I, §
sought suppression
Const. art.
9. He
un
Esparza, supra,
at 282.
exclusionary
der the federal
rule and Article
38.23. Tex.Code Crim. Proc. art. 38.23. The
court,
suggest
23. This is not to
express findings
made
of fact and
evidence under Rule 702
never be deter-
rejecting
conclusions of law
these conten
tions,
pretrial setting;
contrary,
mined in a
findings
on the
and conclusions are am
*7
recognized
we
ply
have
that it
by
can. See State v.
suppression
borne out
evidence at the
Medrano,
addition,
(Tex.Crim.App.2002)
hearing.
That
the case” under
applicable
“law
to
sidered
nev-
however,
they
not mean
does
present,
circumstances,
regard-
this is so
these
can also
appellants
er are. Sometimes
was the
defen-
less of whether
“to
adequate opportunity
of an
deprived
trial court level.
or the State at the
dant
with
factual
record”
complete
develop a
theory, and
legal
to an alternative
respect
that,
Accordingly, we hold
because
justifica-
our
with
incongruous'
it would be
have been
though
appellant
State —
purported alterna-
Hailey
to treat a
tion in
with
never confronted
in this case —was
to
theory
truly
“applicable
law
as
legal
tive
its burden to es-
necessity meeting
If
those circumstances.
case” under
its
scientific
tablish the
appel-
that an
legal
the alternative
on the
results at
time on
as
for the first
proffers
lee
suppress,
motion to
appellee’s pretrial
otherwise
a trial court’s
a basis to affirm
was undevel-
for that reason the record
’
production
turns
faulty judgment
a
respect
as
oped with
that
appellant
he
facts
predicate
reliability,
inadmissi-
of scientific
function
fairly
called
to adduce
never
was
bility of that evidence under Rule 702 was
be-
proceedings
of the
during the course
“theory
to the case”
Calloway rule
low,
of the
application
justify
then
the trial court’s
that
is available to
faulty judgment
appel-
affirm that otherwise
erroneous
on the
otherwise
suppress.34
motion to
injustice.
appellee’s
An
lee’s
a manifest
works
omitted).
(citations
Randolph
apply
should
to motor vehicle
33. Id. at 122
then
Id. at 164-66. We
remanded
searches.
appeals
for further
the case to
court
Judge Meyers
dissenting opinion,
his
In
opinion.
proceedings consistent with our
Id.
Calloway
we "abandoned” the
asserts that
dissent, Judge Meyers
In
at
his
Cope-
opinion in State v.
rule in our recent
that,
assuming
Randolph
argued
even
land,
(Tex.Crim.App.2013).
ruling was
inapplicable,
was
the trial court's
94-95,
opin-
Dissenting Opinion at
n. 1. That
pre-Randolph prec-
correct under this Court's
ion,
Judge Mey-
joined by every judge except
J.,
(Meyers,
dissenting).
edents. Id. at 167-68
ers,
thing,
expressly
either
did no such
that,
Judge Meyers apparently believed
Calloway
implicitly. The
mention of
reason, we
have invoked the Cal-
this
Judge Meyers’s
Copeland appears
in
in
rule
loway
simply
rule and
affirmed the court of
dissent,
Hailey,
allusion to
in
form of an
court's, judg-
appeals’s, and hence the trial
J.,
(Meyers,
supra. Copeland, supra, at 167
discretionary
capaci-
review. In our
ment on
dissenting).
however,
court,
ty
discretionary
as a
review
holding
disposition
our
Neither our
nor
appeals.
of the courts of
we review decisions
Copeland remotely implicates the
E.g.,
Benavidez
was whether the
rule.
issue before us
(Tex.Crim.App.2010). Because the
& n. 20
Randolph,
Georgia v.
rule announced in
applica-
appeals did not address the
court of
1515,
solves the analyzing issue the relative KELLER, J., concurring P. filed a burdens of the parties respect with to a in Rule 702 opinion complaint. which KEASLER and I write separately to HERVEY, JJ., joined. suggest simpler a ques- resolution of the tion before us.
HERVEY, J.,
concurring opinion
a
filed
KELLER, P.J.,
KEASLER,
in which
Calloway
so-called
rule can be
J., joined.
traced back at least
Supreme
as far as the
Court’s decision in United States v. Ameri-
MEYERS, J.,
dissenting opinion.
a
filed
can R. Express Co.3
There,
the Supreme
KELLER, P.J., filed a concurring
explained
Court
that a non-appealing party
opinion in which KEASLER and
any argument
can raise
support
in
of a
HERVEY, JJ., joined.
final
In
decree.4
setting
traditional
in
that,
Calloway
Appellee argues
he
because
won at which the
rule has been applied
suppression hearing,
cases,
he
in
should be al-
criminal
a defendant has been
to take advantage
lowed
of what the
appealing
Court
convicted and is
judgment
Calloway1
calls the
rule:
that a trial
conviction. Such a judgment qualifies as a
ruling may
upheld
any theory
court’s
be
“final decree” under the
by
rule set out
to the
Appellee’s
Supreme
case.
Court. A ruling made during
motion to
a
listed
number of
the proceedings leading to
judgment
reasons to
including must ordinarily
upheld
any
legal basis
obtained,
that it
but he
supports
wishes
it.5 Occasionally, a defendant
suppression
to have the
may
evidence
take advantage of the Calloway rule
1988).
(Tex.Crim.App.
1.
when he obtains to articulate to the State, quash- ing prevailing party the the such as by the appealed uphold- for possible trial court all reasons ing of an information.6 a waste ruling generally would ing on a motion to ruling a trial court’s But trial, if, appeal in an after of time. But decree; an final it is not a suppress is disagrees with the reasons appellate court revi- subject that is interlocutory decree trial, prevailing party articulated trial ends.7 before the any time sion at longer has the prevailing party appeal 44.01 allows Article ability to inform the trial court of addition- circumstances,8 under certain ruling such a ruling for in his favor—unless al reasons change the fact that the but that does trial appellate court orders additional ruling interlocutory.9 Because a ruling is conviction, reversal of the proceedings (e.g. a final suppress is not on a motion to hearing), appellate which retrospective rule, decree, concerns compel- are reluctant to do without courts decree, apply final does not challenges to a Generally, courts ling appellate reasons. interlocutory appeal of such in a State’s compelling find reasons to order will not Instead, interlocutory appeal ruling. if proceedings further trial the record a motion ruling grants upholding for legal veals a valid basis whether the trial only with is concerned ruling, even that basis was trial court’s specific alle- sustained properly court trial court.11 not articulated to the actually made gations that were motion.10 interlocutory, as appeal But when the is appeal with a State’s from the is the case Calloway rule
Part
the reason for the
granting
suppress,
of a motion to
that,
system, when a
adversary
in an
is
will oc-
proceedings
is not over. Further
trial,
expect
courts
ruling
during
made
is
regardless
cur in the trial court
of how
not the win-
losing party
complain,
appellate
is resolved.
If the
court
reality
sys-
ning
practical
A
party.
prevailing party’s par-
determines
that obtains a favorable
party
tem is that a
argument
ticular
in the trial court was
has little
from the trial court often
unsound,
prevailing party
still has
reasons
conjure up
incentive to
additional
to the
ability
arguments
to make further
have ruled
why the trial court should
when the case returns to the
would it be efficient
court
way
it did. Nor
so,
appeal.12
after the
The evi-
to do
as most
prevailing party
for the
301,
Rhine,
consensually litigated
pretrial suppres-
at the
S.W.3d
304
6. See State v.
297
P.J.,
(Keller,
hearing,
though they
even
were not con-
(Tex.Crim.App.2009);
at 314
sion
id.
however,
State,
concurring).
tained in the motion.
litigating
valid
mat-
have a
State,
(Tex.
alleged
7. Black v.
362 S.W.3d
in the motion on basis that
ters not
Crim.App.2012).
given
the State was not
notice that it would
against such matters.
have to defend
44.01(a)(5).
8. Tex.Code
Proc. art.
Crim.
("If
93 might be at express particular denee excluded trial on anoth- concern with the timidi- basis, ty if of majority er or the evidence cannot be ex- the opinion in 'failing to entirety, party might recognize cluded in its the authority be of the trial court as the gatekeeper questions able to articulate a reason for excluding of admissibili- ty, portion including of the evidence.13 forensic science. While ultimately proponent of scien-
A pretrial ruling on a motion to tific evidence bears the burden proving of by is not a final determination the trial reliability by satisfying the criteria set possible court on all for admitting reasons forth in Kelly v. evidence; rather, excluding or it is (Tex.Crim.App.1992), it is the trial court simply a determination of the evi- whether that must conduct the hearing and deter- dence should be excluded on a particular mine whether the proponent has estab- only basis. It is when the trial ends that lished that criteria. See id. at 572-78 & n. all of the trial rulings court’s earlier be- (“Under 104(a) (c) Rule and Rule fixed, come a consequence, as all pos- 702, all [Kelly] three criteria must be sible reasons for sustaining rulings those proven court, to the trial outside the pres- implicated. are The whole point of allow- jury, ence of the before the may evidence ing interlocutory an appeal is to allow a admitted[,]” 104(a) be and “Rule requires discrete litigated issue or issues to be ear- that- admissibility expert testimony ly, before the trial has ended. type This court.”). be by determined appeal designed is not possi- resolve all ble Today, Price, bases which may Judge evidence writing for the ma- inadmissible, jority, admissible or as some bases states admitting excluding the evidence in at trial or in pretrial Whether hearing,
question may yet turn on events occurring can, course, the State ... be made to at the trial level after the interlocutory satisfy its burden to demonstrate relia- appeal has been resolved. bility. But it is not called upon to satis- fy that burden unless and until ap- comments, With these I concur in the pellee ... has specific made a judgment. Court’s that those test results áre scientifically unreliable (perhaps) until the trial OPINION court, in capacity its as the gatekeeper HERVEY, J., filed a concurring opinion of the of scientific KELLER, P.J., KEASLER, sponte sua call [the State] J., joined. to do so. Although I concur in judgment added). Maj. Op. (emphasis In Jack- Court, join son, I Presiding Judge Keller’s an opinion also authored Judge opinion based on the reasoning employed Price, emphasized this Court that “before however, therein. I separately, write admitted, scientific evidence may be held, pretrial hearing be raised at a applying one is nature Calloway rule to inter- ability this does not limit a locutory defendant’s appeals. appellate If an court de- trial.). objections make to evidence at See cides that sustaining the trial court erred in (Tex. also Ross allegation that the evidence was 1984) Crim.App. (citing Bosley). obtained, rule, would ap- if it plied, require appellate court to neverthe- legal 13. That excluding different bases for pick through evi- less the evidence and exclude scope bases, dence affect the portions of the evidence that are inadmissible on other problematic excluded is one hearsay? illustration of the such as (cid:127) to abdicate its role Forcing a trial court outside conduct trial court must evidence gatekeeper determine of scientific jury presence at trial but also problems has established all creates proponent whether the State, 17 has decided because this Court criteria.” Jackson three *13 (em- (Tex.Crim.App.2000) court is limited to the appellate that an S.W.3d added) S.W.2d at (citing Kelly, supplement cannot appellate record and phasis 573). or with its own research bare record of the “correct” sci taking judicial notice that a trial implies
Today
majority
record.1 See Hernandez
ence on a bare
in-
sponte
of sua
incapable
may.be
court
(Tex.Crim.
31-32
admissibility of scientific
quiring into .the.
curiam)
appel
(per
(“Although
App.2003)
gatekeeper. This is
its role as
evidence in
judicial
of oth
late courts
take
notice
chilling
have a
effect
and could
dangerous
concerning
specific
appellate opinions
er
would have otherwise
judges who
on trial
in evalu
theory methodology
scientific
obligation to
contemplated
their
fulfilled
Kelly ‘gate-
Daubert
ating
judgels
a trial
science.
“junk”
prevent
the admission
/
decision,
...
on
judicial notice
keeping’
are far
of this concern
implications
The
as the sole source of
appeal cannot serve
reaching.
trial court record con
support for
bare
sponte inquire
cannot sua
If a trial court
reliability.”).
cerning scientific
evidence
admissibility of scientific
into the
evident from
as would be
under Rule
Presiding Judge
I
Because
believe
Daubert, Kelly, and then-
the dictates
compelling analysis
Keller offers a more
could be
a criminal defendant
progeny,
case,
with
disposition
for the
of this
and
“junk”
simply
science
based on
convicted
a trial
my
respecting
other comments
attorney
she had an
who
because he or
function,
respectfully
I
gatekeeping
court’s
evidence
challenge
proffered
failed
judgment
concur
Court.
it,
jury
and the
inadequately challenged
the wiser because it never
would be none
MEYERS, J.,
dissenting opinion.
filed a
that it relied on to
knew that the science
findings
id. The
In its
of fact and conclusions
junk.
reach its verdict was
See
law,
found, “The State failed
will be criminal
the trial court
real
of this decision
losers
science;
any testimony regarding the
“junk”
present
convicted on
defendants
therefore,
results;
county;
those re-
convicting
breath-test
the residents of
effort,
The
time,
suppressed by
sults were
the Court.”
people
expended
trial;
argued
State State
that the
money
original
at the
and the
injury,
abused its discretion
the State did
of Texas. And to add insult
because
The
production.
of not have the burden of
possible
these results are
because
appeals
theory
court of
found no
of law to
majority’s unfortunately
inconsistent
The court
support
Rule 702.
the trial court’s order.1
language
respect
with
Hernandez,
validity
Judge
cretion but the
of the science de novo.
1. In
dissent in
Keasler's
Id.
agreed
appropri
joined,
which I
we
ate standard of review for
admission
appeals
the axiom in
1. The court of
reiterated
scientific evidence was a bifurcated standard
appeals court
appellate
our
law that
review.
rather
than an abuse-of-discretion
judge’s ruling
it can be
affirm the
Hernandez,
(Keasler,
at 49
See
J.
is,
justified
any other
of law. See
on
State,
,
J.).
dissenting, joined by Hervey,
That
(Tex.Crim.App.
Hailey v.
dence could be a reason for a trial judge
deny a motion to but it is not a
valid reason to I grant motion. dis-
agree. The defendant’s motion to sup-
press judge asked the to review the lawful- of the
ness detention and the breath-test Appellee required
evidence. was not evidence, Danny HOLLOWAY, cite rules of Ex Parte apply do not Lee II, Applicant. suppression hearings, in order for the judge to review the requested breath-test No. WR-78955-01. results. See Granados 217, 227 (Tex.Crim.App.2002).2 It is clear Court of Appeals of Texas. from judge the record that the trial under- stood the request defendant’s to review the Oct.
reliability of the breath-
test but the fact is that the State present
did evidence at all related
to the breath arresting test. After the
officer hearing, judge testified at the
asked the State to call its next witness and “pretty said it was much done.”
The judge asked the State two more times
to call a witness. At that point it was
clear nothing that the State had to show
the court concerning
breath test. nothing provid- Because review, judge
ed for the he was certain-
ly within his discretion to this
evidence.
Copeland,
(Tex.Crim.App.
Obviously
majority