Hartman v. State

• Decision Date: 23 April 1997
• Docket Number: No. 484-96,484-96
• Citation: 946 S.W.2d 60
• Parties: Allen Spock HARTMAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 60

946 S.W.2d 60

Allen Spock HARTMAN, Appellant, v. The STATE of Texas, Appellee.

No. 484-96.

Court of Criminal Appeals of Texas En Banc.

April 23, 1997.

George Scharmen, San Antonio, for appellant.

Angela Moore, Asst. Dist. Atty., San Antonio, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

A jury convicted appellant of driving while intoxicated. Punishment was assessed at ninety days imprisonment, probated for two years, and a fine of $300. The court of appeals affirmed. Hartman v. State, 917 S.W.2d 115 (Tex.App.--San Antonio 1996). We granted appellant's petition for discretionary review to determine whether the admissibility criteria for scientific evidence announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992), apply to all "scientific evidence." ¹

Officer John Muzny was on patrol the night of July 8, 1992, when he noticed appellant's car weaving and operating without its taillights. As Muzny approached the car, he also noticed it did not appear to have its headlights on. He pulled the car over and appellant got out of the car. Muzny recognized that appellant exhibited signs of intoxication, including bloodshot eyes, and that his breath smelled strongly of alcohol. Muzny administered several field sobriety tests to appellant, all of which appellant failed. He then arrested appellant for driving without a valid driver's license or effective liability insurance and took him to the police station at 11:55 p.m. At both 12:36 and 12:39 a.m., Muzny gave appellant intoxilyzer tests which measured appellant's blood alcohol content (BAC) at 0.138.

Prior to trial, appellant moved to suppress the results of the intoxilyzer test. Among other grounds, appellant objected to testimony given by Muzny or George McDougall, Bexar County's Breath Test Technical Supervisor, concerning the results of the intoxilyzer test on the basis that such testimony pertained to scientific techniques which were not shown to be reliable or relevant under Rule of Criminal Evidence 702. ² The court of appeals described McDougall's testimony at the hearing on appellant's motion to suppress as follows:

McDougall testified that at the time of the test appellant's BAC was 0.138. From this, McDougall extrapolated that appellant's BAC was between 0.110 and 0.15 or 0.16 at the time of the stop. When asked whether he knew what appellant had eaten prior to the stop, his age, his drinking history, or his weight, McDougall testified that he knew only appellant's age. However, McDougall explained that he was able to testify regarding appellant's BAC range at the time of the stop because of his training in studying the effects of alcohol upon a person's ability to safely drive a car, his study of how much alcohol it takes to reach a given alcohol concentration based on body weight, and his observations of over 2,000 students going through a complete drinking cycle at classes he taught at San Antonio College over the last seventeen years. McDougall also explained that the Intoxilyzer test "already accounts for the subject's body weight...." In short, McDougall repeatedly testified that, although he could not testify to a precise BAC level at the time of the stop, he could testify to a BAC range.

On cross-examination, counsel for appellant and McDougall agreed that the standard elimination rate of alcohol is .02 percent per hour. McDougall also testified that, while it would take one to two minutes for alcohol to begin to register in the body if a person drank a shot of alcohol on an empty stomach, it might take ten to fifteen minutes if the person had just finished a meal of meat and potatoes. Accordingly, if appellant had just finished a full meal at the time of the stop--forty minutes before registering 0.138 on the Intoxilyzer--his BAC level at the time of the stop would most likely have been between 0.12 to 0.15. McDougall also testified, however, that it would not be remarkable for a person to maintain the same BAC level for forty minutes or longer.

Hartman, 917 S.W.2d at 118-19. The trial judge denied appellant's motion to suppress.

On appeal, appellant argued that the State failed to make the Rule 702 showing for admissibility of scientific expert testimony as required by the United States Supreme Court in Daubert, supra, and by this Court in Kelly, supra and Emerson v. State, 880 S.W.2d 759 (Tex.Crim.App.), cert. denied, 513 U.S. 931, 115 S.Ct. 323, 130 L.Ed.2d 284 (1994). The court of appeals held Daubert, Kelly, and Emerson were inapplicable because those cases concerned evidence based upon novel scientific theory. By contrast, the court of appeals stated, the instant case did not involve novel scientific evidence, noting that it was confronted by an intoxilyzer test rendered admissible by statute ³ without any predicate showing as to reliability. Hartman, 917 S.W.2d at 120. The court of appeals concluded that "the procedures and burden of persuasion enunciated in Kelly do not apply unless the proffered testimony is indeed novel" and that "when the proffered evidence is not novel, the admissibility of the evidence should be examined in line with the more general criteria of Rule 702." Id. The court continued, "Rule 702 thus provides a two-prong test for the admissibility of expert testimony: (1) the expert must be qualified by knowledge, skill, experience, training, or education; and (2) the expert testimony must assist the trier of fact to understand the evidence or decide a fact." Concluding McDougall was qualified to testify by his many years of experience and training, and that his testimony was of assistance to the jury, the court of appeals determined that the trial court did not abuse its discretion in denying appellant's motion to suppress.

In Kelly, we held Rule 702 superseded the Frye "general acceptance" standard for the admissibility of scientific expert testimony. Kelly, 824 S.W.2d at 572. The trial court's task in assessing admissibility under Rule 702 "is to determine whether the scientific evidence is sufficiently reliable and relevant to help the jury in reaching accurate results." Id. (emphasis added). To be considered reliable, evidence based on a scientific theory must satisfy three criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Id. at 573. We also provided a list of non-exclusive factors that could affect a trial court's determination of reliability. Id. We noted "[u]nreliable ... scientific evidence simply will not assist the [jury] to understand the evidence or accurately determine a fact in issue;...." Id. at 572. ⁴

In Daubert, the United States Supreme Court held, in light of the adoption of Federal Rule 702, the Frye test was no longer the standard for admissibility of scientific expert testimony. Daubert, 509 U.S. at 585-87, 113 S.Ct. at 2793. Daubert set forth a two-pronged reliability and relevance standard virtually identical to the one we had adopted in Kelly. Id. at 591-93, 113 S.Ct. at 2796. The Supreme Court explained "[t]his entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id. The Texas Supreme Court followed suit in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex.1995), adopting the tests enunciated in Kelly and Daubert.

Nowhere in Kelly did we limit the two-pronged standard to novel scientific evidence. The Supreme Court in Daubert directly addressed the issue in a footnote, stating "[a]lthough the Frye decision itself focused exclusively on 'novel' scientific techniques, we do not read the requirements of Rule 702 to apply specifically or exclusively to unconventional evidence." ⁵ Daubert, 509 U.S. at 593 n. 11, 113 S.Ct. at 2796 n. 11. The Supreme Court noted that "under the Rules, the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. at 589, 113 S.Ct. at 2795 (emphasis added) . We likewise see no value in having a different standard of admissibility for novel scientific evidence. The problems presented in determining whether or not a particular type of evidence would be considered "novel" are daunting enough to reject application of a dual standard. Moreover, we observe that the factors and criteria set forth in Kelly as bearing upon the reliability of proffered scientific evidence are adequate measure for assuring that "novel" scientific evidence which is "junk science" is excluded. These factors "address the soundness of the underlying scientific theory and technique." Jordan v. State, 928 S.W.2d 550, 554 (Tex.Crim.App.1996). This is the linchpin of Rule 702:

[R]eliability depends upon whether the evidence has its basis in sound scientific methodology. This demands a certain technical showing. Accordingly, it is upon the reliability inquiry that trial courts can weed out testimony pertaining to so-called "junk science." Id. It is largely to this end that trial judges are called upon to serve as "gatekeepers." Daubert, supra. While "junk science" or otherwise inadequately tested scientific theories might be shown to relate to the facts of a case and to that extent be of assistance to the jury, it will not have a sufficiently sound scientific basis to be reliable.

Id at 555.

The standard adopted by this Court in Kelly applies to all scientific evidence offered under Rule 702. The court of appeals erred in applying a standard different than that set forth in Kelly. Accordingly, we reverse the judgment of the court of appeals and remand this cause to that court to reconsider the...