Somers v. State
| Decision Date | 06 June 2012 |
| Docket Number | No. PD–0056–11.,PD–0056–11. |
| Citation | 368 S.W.3d 528 |
| Parties | Aaron SOMERS, Appellant, v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
OPINION TEXT STARTS HERE
David L. Botsford, Austin, for Appellant.
Danny W. Smith, Jr., Bryan, Lisa C. McMinn, State's Attorney, Austin, for State.
The present case involves the admissibility of scientific evidence under Texas Rule of Evidence 702 and Kelly v. State.1 We granted review to determine whether the Court of Appeals erred in holding that EMIT drug test results are not reliable without a confirmation test.2 We hold that the Court of Appeals did err. We hold that EMIT tests are reliable under the first two prongs of Kelly.3
At 11:45 p.m. on October 20, 2007, police responded to a noise complaint at a fraternity house party. Appellant, the social chairman for the fraternity, informed the officers that he was in charge and that any further complaints could be directed to him. Police determined that appellant was slightly intoxicated but did not detain or question him. Police returned to the fraternity house at 2:00 a.m., again in response to a noise complaint. At that time, appellant agreed to shut down the band. The police found appellant to be more intoxicated than at the previous encounter. Police returned at 2:30 a.m. to end the party but did not see or speak to appellant at that time.
A police officer who had responded to the noise complaint was called to the scene of a major accident at 3:24 a.m. The officer arrived at the scene and saw an overturned pickup truck in the road and a second vehicle in the grass on the side of the road. The second vehicle was approximately six inches into the roadway over the fog line; the ignition, headlights, and hazard lights were on; and the vehicle was in drive. The officer recognized appellant at the scene. Based upon witnesses and evidence at the scene, the officer believed appellant was driving the pickup at the time of the accident. The officer performed field sobriety tests on appellant and then placed him under arrest for driving while intoxicated.
The victim, Michelle Briggs, was the sole occupant of the vehicle struck by appellant'spickup. When Briggs was found at the site of the collision, she had no signs of life and was believed to be dead. Although she had no obvious head or neck injuries, she had no pulse, she was not breathing, and her eyes were rolled back in her head. First responders extracted Briggs from her vehicle and administered CPR. Electrodes were attached to Briggs and revealed that she was in pulseless electrical activity and that blood was not getting oxygen to her brain or body. She was taken by ambulance to the hospital where her brain activity was found to be consistent with that of a deceased person.
Samples of Briggs's blood were drawn at the hospital on the date of the collision, October 21, 2007, and submitted to the Texas Department of Public Safety (DPS) on October 25, 2007. No preservatives were added to the blood samples. Over the course of her hospitalization, Briggs lost what little brain function she previously had, and on October 27, 2007, she was taken off of life support and pronounced dead.
On November 20, 2007, approximately one month after the collision, the DPS crime lab performed a drug analysis of Briggs's blood using an enzyme-multiplied immunoassay technique (EMIT). DPS tested Briggs's blood for six different classes of drugs: amphetamines, barbiturates, benzodiazepines, cocaine and its metabolites, opiates, and phencyclidine. The results were positive for both cocaine and amphetamines. Approximately one year after the EMIT test was performed, DPS conducted gas chromatograph/mass spectrometer (GC/MS) tests on the sample of Briggs's blood to confirm the results of the EMIT test.4 The GC/MS test results were positive for amphetamines, but showed only trace amounts of cocaine. The trace amounts of cocaine were below the minimum levels required by DPS protocol before the results could be reported as “positive” for cocaine. Based on the results of the EMIT and GC/MS tests, and in accordance with internal protocol, DPS issued a final toxicology report on March 9, 2009, reflecting that Briggs's blood was positive only for amphetamines.
Meanwhile, appellant was charged with intoxication manslaughter. The State's theory of prosecution was that appellant became intoxicated at the fraternity party and later drove the pickup that collided with Briggs's vehicle, thereby causing her death. Appellant's primary defensive theory was that Briggs was on drugs and had likely died of a heart attack before the vehicles collided, and appellant was therefore not criminally responsible for her death. To support this theory, appellant planned to submit the results of a drug test performed on Briggs's blood after the collision. However, the State filed a pre-trial motion in limine seeking to limit “[a]ny direct or indirect reference to drug consumption by, impairment of, or intoxication of [Briggs] specifically but not limited to amphetamine.”
On August 25, 2009, the trial court held a Rule 702 hearing outside the presence of the jury to consider the admissibility of the EMIT test results. 5 Defense counsel cited two reasons for admitting the evidence: (1) to show Briggs's cause of death; and (2) to make the jury understand why it was likely that Briggs had parked partially on the roadway. Appellant sought to meet his burden of showing reliability by offering expert testimony, scientific articles, and published judicial opinions from other jurisdictions.
Appellant offered testimony of three experts from DPS who had performed the EMIT and GC/MS tests on Briggs's blood. These experts testified as to their qualifications and experience, the drug test procedures, and their knowledge of the general accuracy and reliability of EMIT test results. The first witness to testify was Megan Barton, the DPS employee who conducted the EMIT test on Briggs's blood approximately one month after the blood had been drawn. Barton testified that she earned a bachelor of science degree from the University of Texas, had completed in-house training at DPS, and has performed thousands of analyses throughout her career. Barton described the scientific theory underlying the EMIT test and how it is performed:
There are two parts to it. You have an antigen and an antibody. The antigen, it is made to react with the drug—class of drugs in question. When the two are added together, there is a bond between the antibody and the antigen, and that will produce a color change.
[A sample of blood] is placed with the instrument and run with these specific reagents I talked about that have the antibodies and antigens. It will give us a result of positive or negative within those classes of drugs.
Barton testified that the underlying scientific theory of the EMIT machine is valid and that she applied the technique correctly. She testified that she tested Briggs's blood for six different classes of drugs, and that the results indicated a possible positive for benzoylecgonine, or “cocaine and its metabolites,” and a possible positive for amphetamines. EMIT test results fall into four levels of increasing concentration: 0.1 to 0.3; 0.3 to 1.0; 1.0 to 3.0, and above 3. Barton testified that the EMIT test results for cocaine in Briggs's blood were in the third highest level, i.e., 1.0 to 3.0.
Barton testified that DPS has a heavy caseload and that the EMIT test is used as a reliable initial screening test. She testified that under DPS protocol, when EMIT test results are positive for a class of drugs, only then is the more accurate and more expensive GC/MS test performed to confirm “what specific drug we're talking about.” Barton agreed that the manufacturer of EMIT recommends further testing to confirm the presence of the drugs and that with an EMIT test alone she could not determine how or when an individual ingested cocaine or how many times.
Barton testified that the EMIT test is widely used and that, from both her own personal dealings and the literature, she has found it to be a reliable screening test. She testified that, out of the thousands of EMIT tests throughout her career at DPS, she had never personally encountered a false positive. Barton had heard of only one or two false positives out of thousands, but she pointed out “that is hearsay from other analysts; not me personally.” Barton testified that the negative GC/MS test for cocaine in Briggs's case would not be indicative of a false positive, but instead, would be indicative of how Briggs's blood sample was preserved. She explained that cocaine is unstable and breaks down quickly and that, to her knowledge, Briggs's blood sample did not contain the preservative that is normally used.
Appellant's second witness to testify was Renae Hawkins, a forensic scientist with the DPS laboratory who performed the GC/MS test on Briggs's blood for cocaine almost one full year after Briggs's blood had been drawn. Hawkins testified that she earned a bachelors degree in chemistry from the University of Texas and was a trained toxicologist. Hawkins explained the underlying scientific principles of the EMIT test and how it is performed:
[EMIT] stands for enzyme-multiplied immunoassay technique. Basically the scientific principles behind it are, it tests for six classes of drugs, and it is based on the relationship between an antigen and an antibody, the drug in the blood being the antigen.
And then we add the antibody to the samples, and if there is a relationship or reaction, that reaction is measured to let us know that that drug is in the sample.
She then explained that when the antibody reacts with the antigens in the blood, this “reaction” is made apparent by a “change of absorbance” or “color change,” which is then...
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