Hernandez v. State

• Decision Date: 04 June 2003
• Docket Number: No. 2053-01.,2053-01.
• Citation: 116 S.W.3d 26
• Parties: Arturo Chavez HERNANDEZ, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

116 S.W.3d 26

Arturo Chavez HERNANDEZ, Appellant, v. The STATE of Texas.

No. 2053-01.

Court of Criminal Appeals of Texas, En Banc.

June 4, 2003.

Guy Williams, Corpus Christi, for Appellant.

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

Before the court en banc.

OPINION

PER CURIAM.

The present case involves the admissibility of scientific evidence under Texas Rule of Evidence 702 and Kelly v. State.¹ Specifically, we granted the State's following three grounds for review:

1) Must a party seeking to introduce evidence of a scientific principle always present evidence sufficient to satisfy the test of Kelly v. State, 824 S.W.2d 568 (Tex.Cr.App.1992), regardless of the particular scientific principle?

2) Where either the Court of Criminal Appeals or a court of appeals has determined the validity of a particular scientific principle and a technique applying that principle, must a party subsequently seeking to introduce evidence based upon that scientific principle nevertheless satisfy the first two prongs of the test of Kelly v. State, 824 S.W.2d 568 (Tex.Cr.App.1992)?

3) Did the Court of Appeals in this case err in holding that the trial court had abused its discretion by admitting evidence of the results of a urinalysis test of the appellant's urine sample?

The short answers to these three questions are: "No, no, and no." Therefore, we affirm the court of appeals which held that the trial court abused its discretion in revoking appellant's community supervision based upon scientific evidence that was not shown to be reliable. Hernandez v. State, 55 S.W.3d 701 (Tex.App.-Corpus Christi 2001).

I.

Appellant pleaded guilty to possession of marijuana and the trial court placed him on probation for ten years. Almost a full ten years later, the State filed a motion to revoke his probation alleging, inter alia, that appellant failed to avoid the use of controlled substances and had tested positive for marijuana on January 28, 1999.

At the revocation hearing, Alonzo Perez, a laboratory technician, testified that he tested appellant's urine for the presence of drugs using a machine called an "ADx analyzer." The test results were positive. Mr. Perez testified that he had worked as a urinalysis lab technician for two and a half years. He explained that he had thirty-two hours of specialized training on the ADx analyzer and about two and a half weeks of extensive on-the-job training. When asked how many urinalysis tests he had performed, he replied, "I couldn't say. It's just so many."

On cross-examination, appellant asked Mr. Perez to explain the scientific theory underlying the test:

The machine uses what you call flourescence polarization amino acid technology which deals with antigens and antibodies that are in the blood system, and the antigens being the drugs.... Well, what the machine does is, you see, the antigens are in your bloodstream. That's the drugs, but they are not in our system long enough for your body to produce antibodies to attack them so what the company does is they send you reagins [sic] which you use which what they do is they inject lab rats with these drugs so they can produce the antibodies, and what happens is the antibodies attach to the antigens and then the drug machine and these antibodies have a flourescent tag on them and when the light is shown through that is what gives you the reading.

Mr. Perez testified that he had learned that the machine was ninety-five to ninetysix percent accurate, but he conceded that he did not know the technical aspects of the machine's operation.

At the close of evidence, appellant reurged his Rule 702 objections to Mr. Perez's testimony and to the lab report. He argued that Mr. Perez "did not know anything about the scientific theory underlying the test, whether the scientific theory was valid, whether any techniques used in applying the theory [were] valid, whether or not the technique was properly applied in this case." The trial court, however, ruled that the evidence was reliable and noted that Mr. Perez had testified on this subject in other cases.

The Corpus Christi Court of Appeals held that Mr. Perez's testimony and the lab report were inadmissible because the State failed to satisfy the scientific reliability requirements set out in Kelly.² The court of appeals also noted that it had previously held Mr. Perez's testimony inadmissible for the same reason in an earlier, unpublished opinion involving this same appellant.³

II.

A party seeking to introduce evidence of a scientific principle need not always present expert testimony, treatises, or other scientific material to satisfy the Kelly test. It is only at the dawn of judicial consideration of a particular type of forensic scientific evidence that trial courts must conduct full-blown "gatekeeping" hearings under Kelly. Once a scientific principle is generally accepted in the pertinent professional community and has been accepted in a sufficient number of trial courts through adversarial Daubert/Kelly hearings, subsequent courts may take judicial notice of the scientific validity (or invalidity) of that scientific theory based upon the process, materials, and evidence produced in those prior hearings.⁴

Similarly, once some courts have, through a Daubert/Kelly "gatekeeping" hearing, determined the scientific reliability and validity of a specific methodology to implement or test the particular scientific theory, other courts may take judicial notice of the reliability (or unreliability) of that particular methodology.⁵

Trial courts are not required to reinvent the scientific wheel in every trial. However, some trial court must actually examine and assess the reliability of the particular scientific wheel before other courts may ride along behind. Some court, somewhere, has to conduct an adversarial gatekeeping hearing to determine the reliability of the given scientific theory and its methodology.⁶

In this case, appellant objected under Rules 702-705 to the technician's testimony concerning the results produced by an ADx analyzer testing machine. Appellant did not argue that the underlying scientific theory of urinalysis, as a mode of determining whether a person has consumed a certain substance, is scientifically invalid. His objection went to the machine itself. He stated:

There has been no proper predicate to establish the ... reliability of the testing procedures and this gentleman has not been qualified as an expert. We don't know anything about the machine, whether it's reliable. Based on Rule 702 and Rule 705, I would object that this burden by the State has not been met, Your Honor.

The trial court simply stated:

The procedures meet the requirements of law. The Court has upheld the procedure in other cases that the witness Alonzo Perez testified to.

The fact that a trial court has allowed some type of scientific testimony by a particular witness before (perhaps without objection) does not mean that the witness' testimony is, ipso facto, scientifically reliable in this case. Nor does the fact that the trial court has allowed this witness to testify to these procedures before explain how or why the ADx machine is a scientifically reliable one for determining the presence of a controlled substance. It may well be scientifically reliable, but the trial court's statement that he has allowed this testimony before does not make it so. Perhaps the trial judge had previously conducted numerous Daubert/Kelly gatekeeping hearings on precisely this issue and had repeatedly found it scientifically reliable. If he had, then either the State or the trial judge should put that on the record along with materials from those previous hearings.⁷ There is no other evidence or material in this trial record, however, that would support any finding of the scientific reliability of the ADx analyzer.

Thus, the Corpus Christi Court of Appeals did not err. It found that the trial court abused its discretion in admitting the results of "an ADX analyzer" without any showing of its scientific reliability or any reliance upon other scientific materials or judicial opinions which had found "an ADx analyzer" a reliable methodology for determining whether a person does or does not have marijuana in his body.⁸

In his brief to this Court, the State Prosecuting Attorney presents a plethora of cites to scientific articles and learned treatises, as well as to some cases from other jurisdictions concerning this general area of scientific endeavor. This is swell stuff. The trial court should have been given this material, and appellant should have been allowed an opportunity to crossexamine any witnesses who sponsored it. The trial court hearing is the main event for Daubert/Kelly gatekeeping hearings; it is not a try-out on the road to an appellate scientific seminar.

The State had the burden of proof at trial (or, as in this case, at the probation revocation hearing) to show, by clear and convincing evidence, that the ADx analyzer is a reliable method of determining the presence of marijuana in a person's body.⁹ It failed to offer any testimony, any scientific material, or any published judicial opinions from which the trial court might take judicial notice of its scientific reliability.¹⁰ It cannot now rely upon the appellate courts to become independent scientific sleuths to ferret out the appropriate scientific materials which could support the trial court's decision to allow the ADx technician's testimony.¹¹ Thus, the court of appeals was confronted with a trial record which did not support the scientific reliability of the ADx machine.¹² It cannot be faulted for concluding that, based upon the record before it, the State had failed to show the machine's reliability.

Although appellate courts may take judicial notice of other appellate opinions concerning a specific scientific theory or methodology in evaluating a trial judge's Daubert/Kelly "gateke...