Hernandez v. State

• Decision Date: 31 August 2001
• Docket Number: No. 13-00-065-CR,13-00-065-CR
• Citation: 55 S.W.3d 701
• Parties: (Tex.App.-Corpus Christi 2001) ARTURO HERNANDEZ, APPELLANT, v. THE STATE OF TEXAS, APPELLEE
• Court: Texas Court of Appeals

Page 701

55 S.W.3d 701 (Tex.App.-Corpus Christi 2001)

ARTURO HERNANDEZ, APPELLANT, v. THE STATE OF TEXAS, APPELLEE.

No. 13-00-065-CR

Court of Appeals of Texas, Corpus Christi

August 31, 2001

On appeal from the 105th District Court of Kleberg County, Texas.

Before Justices Dorsey, Hinojosa, and Rodriguez

OPINION

Dorsey, Justice

Appellant, Arturo Chavez Hernandez, appeals from the trial court's judgment revoking his community supervision. The question raised on appeal is whether the trial court abused its discretion in admitting evidence of his urinalysis test results. We reverse and remand.

I. Background

In 1989, appellant pleaded guilty under a plea-bargain agreement to possession of marihuana. The trial court sentenced him to ten years in prison, probated for ten years and a $3,000 fine. On February 9, 1999, the State filed a motion to revoke his community supervision, alleging several violations. This appeal concerns only one violation, count eight, which alleged that appellant failed to avoid the use of drugs, narcotics, or any other controlled substances and tested positive for marihuana on January 28, 1999.

Revocation Hearing

The trial court heard the motion to revoke on March 4, 1999, at which time the State offered the results of appellant's urinalysis through Alonzo Perez. Perez was a laboratory technician for the Kleberg County Community Supervision & Corrections Department. He tested appellant's urine for the presence of drugs using a machine called an "ADX analyzer". He had worked as a urinalysis lab technician for the department for two and one-half years, with thirty-two hours of specialized training on the ADX analyzer and about two and one-half weeks of extensive on-the-job training. He testified that he had "certain skills" which he gained from being an industrial engineering student at Texas A & M University-Kingsville. When the State's attorney asked him how many urinalysis tests he had performed he replied, "I couldn't say. It's just so many."

When the State offered the results of appellant's urinalysis into evidence defense counsel objected that the State did not meet the requirements of Rule 702 of the Texas Rules of Evidence. The trial court overruled the objection, and Perez testified that appellant tested positive for cannabinoids (marihuana).

On cross-examination defense counsel questioned Perez about the ADX analyzer as follows:

Q: [W]hat do you know about this machine? Do you know how it works?

A: Well, they have briefed me on all the different kinds of, you know, the technology.

Q: Tell the Court how this machine works that gives you the ability to operate the machine and to come out for a positive test.

A: I enter all the data that's necessary for, you know, for bookkeeping and stuff into our computer, and then I proceed to pipe all the appropriate samples into what you call a flexible access carousel. You take the carousel and you place it in the analyzer and it tests the samples.

Q: And do you know the scientific theory underlying how these samples are tested?

A: The machine uses what you call fluorescence polarization amino acid technology which deals with antigens and antibodies that are in the blood system, and the antigens being the drugs.

Q: And do you know how the machine does that?

A: [W]hat 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 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 fluorescent tag on them, and when light is shown through that is what gives you the reading.

* * * * * *

Q: Do you have any information regarding the reliability of the machine?

A: Yes, I do.

Q: What is that information?

A: [Y]ou can say these results are within 95 to 96 percent competence that they are accurate.

Q: And you know that by reading the brochures on the machine?

A: Well, during my training they teach you these things, and plus they require me to read up on this kind of stuff and learn what I can.

* * * * * *

Q: You don't know how the machine works, correct?

A: The actual technical part of it, no, I don't. I just run it.

After hearing the evidence the trial court found that the State had proven count eight of the motion to revoke. The court also found that the State failed to prove all other violations alleged in the motion to revoke. The trial court revoked appellant's community supervision and sentenced him to ten years in prison and a $3,000 fine.

II. Analysis

By one point of error appellant asserts that the trial court abused its discretion in revoking his community supervision because the court erroneously admitted the results of his urinalysis. He contends that the State failed to make the Rule 702 showing for admissibility of scientific expert testimony.

Rule 702

Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Tex. R. Evid. 702. Pursuant to Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) the proponent of expert testimony or evidence based on a scientific theory must show by clear and convincing evidence that the evidence is (1) reliable and (2) relevant to assist the trier of fact in its fact-finding duty. Id. at 572. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). To be 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. Hartman v. State, 946 S.W.2d 60, 62 (Tex. Crim. App. 1997);Kelly, 824 S.W.2d at 573. The ADX analyzer is based on a scientific theory and is, therefore, subject to proof of reliability and relevance under Kelly.

Factors that could affect a trial court's determination of reliability include, but are not limited to: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the testifying expert(s); (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question. Kelly, 824 S.W.2d at 573.

We review the trial court's decision under an abuse of discretion standard, which means the decision must be within the zone of reasonable disagreement in light of the evidence offered at the hearing and the requirements of Rule 702. Id. at 574. If the trial court is so persuaded then it should admit the evidence, unless the trial court determines that some factor identified in Rule 403 outweighs the probative value of the evidence. Id. at 573.

IV. Kelly Factors

1. Scientific Community's Acceptance of Underlying Theory and Technique.

The evidence does not show the extent to which the underlying scientific theory and technique involving the ADX analyzer are accepted as valid by the relevant scientific community. There is also no evidence to show the existence of literature supporting or rejecting the underlying scientific theory and technique.

2. Clarity of the Explanation of the Underlying Technique and Potential Rate of Error.

Perez testified that he entered all the data needed for bookkeeping into a computer and then "pipe[d]" all the appropriate samples into a flexible access carousel. He placed the carousel in the ADX analyzer and it tested the samples. He explained that the analyzer used fluorescence polarization amino acid technology, which dealt with antigens and antibodies in the blood system. He said that the antigens, which are the drugs, are not in the bloodstream long enough for the body to produce antibodies to attack them. Thus the company supplied reagins. He explained that the antibodies attach to the antigens, and these antibodies have a fluorescent tag on them. This is what provides the reading. According to Perez the results are within ninety-five to ninety-six percent accurate.

3. Perez's Qualifications, Skill, and Experience.

Perez had worked about two and one-half years as a urinalysis lab technician. His specialized training included thirty-two hours of ADX analyzer training and about two and one-half weeks of extensive on-the-job training. He also had "certain skills" which he gained from being an industrial engineering student. Perez operated the ADX analyzer, but admitted that he did not know how it worked.

4. Availability of Other Experts.

Perez was the only witness who testified about the ADX analyzer, and the State offered no evidence about the availability of other experts to test and evaluate the technique.

We can find no reported Texas cases which have decided the admissibility of urinalysis test results produced by an ADX analyzer. Recently, however, in an earlier case involving this same appellant we held in an unpublished opinion that urinalysis test results produced by an ADX analyzer were not admissible. See Hernandez v. State, No. 13-00-684-CR (Tex. App.-Corpus Christi, March 8, 2001, no pet.) (not designated for publication), 2001 Tex. App. Lexis 1651. The facts of that case were that after the trial court had revoked appellant's...