Melissa Dromgoole v. State ( 2015 )

ACCEPTED
01-13-00931-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
1/3/2015 11:04:00 AM
CHRISTOPHER PRINE
CLERK
NO. 01-13-00931-CR
IN THE COURT OF APPEALS FILED IN
1st COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT OF TEXASHOUSTON, TEXAS
AT HOUSTON 1/5/2015 8:00:00 AM
CHRISTOPHER A. PRINE
Clerk
MELISSA DROMGOOLE § APPELLANT
§
VS. §
§
THE STATE OF TEXAS § APPELLEE
___________________________________________________________________
APPEAL FROM CAUSE NO. 1840727
IN THE COUNTY COURT AT LAW NO. 1
OF HARRIS COUNTY, TEXAS
___________________________________________________________________
APPELLANT’S REPLY BRIEF
___________________________________________________________________
NORMAN J. SILVERMAN
Texas Bar No. 00792207
917 Franklin, 4th Floor
Houston, Texas 77002
(713) 526-1515
(713) 526-1798 (FAX)
lawyernorm@msn.com
ATTORNEY FOR APPELLANT
Contents
Table of Contents ....................................................................................................... 2
List of Authorities ...................................................................................................... 3
Reply Regarding Issue One ........................................................................................ 6
Reply Regarding Issue Three ................................................................................... 10
A. The error was preserved ........................................................................ 10
B. Appellant’s proposed construction does not lead to absurd results;
the analysis in Beeman is no long valid. .............................................. 13
Reply Regarding Issue Four ..................................................................................... 17
A. Standard of Review ............................................................................... 17
B. Applicable Law...................................................................................... 18
C. The State failed to establish by clear and convincing evidence
that the blood serum analysis was reliable because the method
was not properly validated. ................................................................... 20
D. The error affected Appellant’s substantial rights. ................................. 35
Prayer ....................................................................................................................... 37
Certificate of Service ................................................................................................ 38
Certificate of Compliance ........................................................................................ 38
2
List of Authorities
Cases:
Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002) ...............................passim
Bolieu v. State, 779 S.W.2d 489 (Tex.App.-Austin 1989, no pet.) ......................... 20
Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999) ........................................................ 27
Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010) .................................passim
Combs v. State, 6 S.W.3d 319
(Tex. App.-Houston [14th Dist.] 1999, no pet.) ............................................... 20
Daubert v. Merrell Dow Pharms.,
509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) ............................ 17, 21
E.I. du Pont de Nemours & Co., Inc. v. Robinson,
923 S.W.2d 549 (Tex. 1995) ............................................................................ 34
Ford v. State, 305 S.W.3d 530 (Tex.Crim.App.2009) ............................................ 12
Garcia v. State, 829 S.W.2d 796 (Tex. Crim. App. 1992) ...................................... 15
Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000) ...................................... 17
Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) .................................... 36
Jones v. State, 716 S.W.2d 142 (Tex. App.-Austin 1986, pet. ref'd) ...................... 20
Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) ................................... 19, 20
King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) ......................................... 36
Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) .................................. 13
Martinez v. State, 17 S.W.3d 677 (Tex. Crim. App. 2000) ..................................... 36
3
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) ..................... 21
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) ............................. 17
Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir.1998) ............................. 24
Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999) ....................................... 17
Roberts v. State, 940 S.W.2d 655 (Tex. Crim. App. 1996) ..................................... 15
State v. Daugherty, 931 S.W.2d 268 (Tex. Crim. App. 1996) ............................... 16
State v. Johnson, 939 S.W.2d 586 (Tex. Crim. App. 1996) .................................... 16
State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) ................................. 6, 7
State v. Villarreal,
No. PD–0306–14, ––– S.W.3d ––––,
2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014) .................................. 14, 16
United States v. Bynum, 3 F.3d 769 (4th Cir. 1993) ............................................... 20
Vela v. State, 209 S.W.3d 128 (Tex. Crim. App. 2006) .......................................... 17
Webb v. State, 36 S.W.3d 164
(Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) ............................................ 36
Wright v. State, 853 S.W.2d 154 (Tex. App.-Corpus Christi 1993, pet. ref'd) ....... 20
Statutes, Codes and Constitutional Provisions:
TEX. R. APP. P. 9.4 .................................................................................................. 38
TEX. R. APP. P. 33.1 ................................................................................................. 12
TEX. R. APP. P. 44.2 ................................................................................................. 36
4
TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005) ............................................ 17
TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005) ...................................... 16, 17
TEX. R. EVID. 702 ..................................................................................................... 17
TEX. R. EVID. 705 .................................................................................................... 18
TEX. TRANSP. CODE § 724.012 ..........................................................................passim
TEX. TRANSP. CODE § 724.013 ..........................................................................passim
5
To the Honorable Justices of the Court of Appeals:
Reply Regarding Issue One
The State asserts that Appellant failed to meet her burden with regard to her
claim that a blood test was unreasonable due to her medical condition, syncope. The
State asserts that the law requires a defendant to explain to the police prior to the
blood draw why the disclosed condition would render a blood test unreasonable
(State’s Brief at 8-11). This argument does not defeat her claim for four reasons.
First, this is not the standard set out in State v. Johnston, 336 S.W.3d 649,
659 (Tex. Crim. App. 2011), which requires only evidence in the record verifying a
medical condition which renders a blood draw traumatic, painful, or risky. The
Court of Criminal Appeals set out the standard for disclosure as follows:
Implicit within Schmerber is that each suspect bears the
burden of showing that a venipuncture blood draw is not
a reasonable means to obtain a blood alcohol level
assessment as to him or her, individually. And in the
absence of any record evidence showing that a
venipuncture blood draw would not be reasonable in a
particular case due to a verifiable medical condition, we
will presume that the choice to administer such a test is
reasonable. A DWI suspect, naturally familiar with his or
her own medical history, is in the best position to identify
and disclose any peculiar medical condition that could
result in risk, trauma, or more than de minimus pain if a
blood draw were to be performed.
Id. at 660 (footnotes omitted). Nowhere in the Johnston opinion does the Court
6
require a defendant to fully explain to the police prior to the blood draw why a
disclosed condition makes a blood draw traumatic, painful, or risky. The standard
requires the defendant, in order to overcome the presumption of reasonableness, to
establish record evidence verifying that the defendant has a medical condition that
renders a blood draw traumatic, painful, or risky. Appellant met this burden.
Second, even if the trial court found that Appellant did not fully explain the
specific risk concerning blood drawing to the police, what she disclosed about her
condition was enough to put the police on notice that a blood draw should not be
done without further investigation into her condition. The undisputed facts show
that Appellant told Officer Nunn that she suffered from syncope, that it involved
low blood pressure and fainting, and that she was suffering from an episode of her
condition at the police station that caused her to be unable to get out of the patrol
car for ten to fifteen minutes (SX4; 2RR65; 5RR81, 164; 9RR32, 79). These
disclosures were sufficient to inform the police that a blood draw might result in
complications, particularly in light of the fact that she was too ill to stand shortly
before the blood draw. The Court in Johnston expressly entrusted law enforcement
officials with the duty to be “deliberate and conscientious when choosing the type
of test to administer to obtain a suspect’s blood alcohol level.” 336 S.W.3d at 660.
When presented with a suspect who has identified a condition involving low blood
7
pressure and fainting, and who claims to a suffering from an episode while in
custody, a conscientious officer would investigate the condition by further
questioning the suspect about the condition, or by consulting a reference or medical
professional, before subjecting the suspect to a forced invasive procedure. Placing
an onerous burden on a suspect who is likely nervous, possibly incapacitated by a
medical condition, possibly intoxicated, and facing the coercive circumstances of
being confronted by the police with a court order for a forcible blood draw, to
present a full explanation of how a particular medical condition may present
complications in a blood draw or to request specific accommodations, is
unreasonable. This is especially the case where the police have already ignored or
discounted the suspect’s claims of illness and accused her of being uncooperative.
Third, the evidence in this case shows that Officer Nunn did not believe
Appellant when she disclosed her condition, so further explanation would have
been futile. The State acknowledges that Officer Nunn did not believe Appellant
when she claimed to be unable to exit the patrol car because of her syncope (State’s
Brief at 10-11; 2 RR67-68, 72, 73). Nunn also testified that it was his practice to
disregard reported medical conditions as mere “excuses” and that he was wholly
unaware of any conditions that could present complications in a blood draw
(2RR28, 67, 76-77). Nunn continued to maintain at the suppression hearing that
8
Appellant was simply being uncooperative when she told numerous officers that
she was ill and unable to exit the patrol car (2RR73). Nunn was clearly unreceptive
to Appellant’s attempts to apprise him of her condition, and there are apparently no
police procedures in place for documenting or verifying reported medical
conditions. For these reasons, placing a more onerous burden on Appellant and
similarly situated defendants would serve no purpose.
Finally, allowing a defendant to demonstrate how a medical condition creates
the risk of pain or trauma after the blood draw does not put the State in any worse
position. Regardless of whether the defendant meets her burden before the blood
draw or later in a hearing, the outcome is the same – no blood test evidence for the
State. In the absence of clear language in Johnston imposing a deadline for meeting
the burden to overcome the presumption of reasonableness, this Court should not
impose an arbitrary deadline.
The Court should find that Appellant’s disclosures to the police, in
conjunction with the supporting expert testimony at the suppression hearing, were
sufficient to fulfill her burden under Johnston.
9
Reply Regarding Issue Three
A. The error was preserved.
The State asserts that Appellant failed to preserve her claim that sections
724.012 - 724.013 of the Transportation Code do not authorize a nonconsensual
blood draw absent the aggravating circumstances listed in section 724.012 (b). The
State asserts that Appellant failed to preserve the error because her motion did not
mention section 724.013.
Appellant sufficiently preserved her claim by referencing section 724.012.
As asserted in Appellant’s motion (CR84), section 724.012(a) states that “one or
more specimens of a person’s breath or blood may be taken if the person is
arrested and at the request of a peace officer having reasonable grounds to believe
the person” has committed driving while intoxication or driving under the influence
of alcohol by minor. TEX. TRANSP. CODE § 724.012 (a) (emphasis added). Section
724.012(b) sets out the only circumstances when police may “require” the taking of
a specimen in the event that “the person refuses the officer’s request to submit to
the taking of a sample”:
A peace officer shall require the taking of a specimen of
the person’s breath or blood under any of the following
circumstances if the officer arrests the person for an
offense under Chapter 49, Penal Code, involving the
operation of a motor vehicle or a watercraft and the
person refuses the officer’s request to submit to the
10
taking of a specimen voluntarily:
TEX. TRANSP. CODE § 724.012 (b) (emphasis added). The subsection then lists
certain aggravating circumstances, fully laid out in the motion, in which a
nonconsensual blood draw is permitted (CR84): the intoxication offense caused an
accident resulting in death or serious bodily injury (724.012(b)(1)); the offense
occurred with a child passenger in the vehicle (724.012(b)(2)); or the arrestee has
been previously convicted or placed on community supervision for certain
intoxication offenses under Chapter 49 of the Penal Code (724.012(b)(3)). As
asserted in the motion, a first-offense DWI is “conspicuously missing” from the
exclusive list of circumstances in which police “shall require” a specimen after a
refusal (CR85). The language chosen by the legislature in subsection (a) – that a
specimen “may be taken . . . at the request of a peace officer” -- indicates that the
suspect must agree to the request. In contrast, subsection (b) states that the officer
“shall require” the taking of a specimen even if “the person refuses the officer’s
request” in the limited enumerated circumstances.
Section 724.013, while not cited in the motion, is redundant of the content of
section 724.012 because it simply states the converse: “Except as provided by
Section 724.012(b), a specimen may not be taken if a person refuses to submit to
the taking of a specimen designated by a peace officer.” Section 724.012 (b) already
11
establishes the exclusive list of circumstances in which the police may “require” a
suspect to submit to a nonconsensual test. Section 724.013 merely reemphasizes
that, except for the enumerated circumstances, a nonconsensual specimen may not
be taken.
Appellant’s motion also asserted that the Court of Criminal Appeals
misconstrued § 724.012 as providing an expanded ability to seize blood
notwithstanding the existence of a warrant in Beeman v. State, 86 S.W.3d 613 (Tex.
Crim. App. 2002), and argued that section 724.012 limits the availability
of nonconsensual blood seizures pursuant to warrant to those circumstances listed
in the statute (CR85-86). These arguments were sufficient to inform the trial court
of the basis of her motion.
To preserve error, a complaint must be “made to the trial court by a timely
request, objection, or motion that ... state[s] the grounds for the ruling that the
complaining party sought from the trial court with sufficient specificity to make the
trial court aware of the complaint, unless the specific grounds were apparent from
the context.” TEX. R. APP. P. 33.1(a)(1)(A). Regarding its specificity, the objection
must simply be clear enough to provide the judge and the opposing party an
opportunity to address and, if necessary, correct the purported error. Ford v. State,
305 S.W.3d 530, 533 (Tex.Crim.App.2009). “Straightforward communication in
12
plain English will always suffice.” Lankston v. State, 827 S.W.2d 907 (Tex. Crim.
App. 1992). “The standards of procedural default ... are not to be implemented by
splitting hairs in the appellate courts. As regards specificity, all a party has to do to
avoid the forfeiture of a complaint on appeal is to let the trial judge know what he
wants, why he thinks himself entitled to it, and to do so clearly enough for the judge
to understand him at a time when the trial court is in a proper position to do
something about it.” Id. at 909.
The motion clearly asserted that section 724.012(b) sets out an exclusive list
of the circumstances in which police may require a nonconsensual test. Because
section 724.013 simply restates the content of section 724.012, the motion
adequately preserved the error.
B. Appellant’s proposed construction does not lead to absurd results;
the analysis in Beeman is no long valid.
Regarding the merits of Issue Three, the State asserts that Appellant’s
proposed construction is absurd because it results in “giving certain DWI suspects
more protection than other criminal suspects,” an interpretation rejected by the
Court of Criminal Appeals in Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim.
App. 2002).
Appellant asserts that the entire analysis in Beeman interpreting the implied
consent scheme has been called into doubt. The Beeman Court’s rejection of
13
Appellant’s proposed interpretation was expressly premised on its finding that the
purpose of section 724.012 (b) is to provide for warrantless nonconsensual blood
draws:
The implied consent law does just that—it implies a
suspect’s consent to a search in certain instances. This is
important when there is no search warrant, since it is
another method of conducting a constitutionally valid
search. . . . The implied consent law expands on the
State’s search capabilities by providing a framework for
drawing DWI suspects’ blood in the absence of a search
warrant. It gives officers an additional weapon in their
investigative arsenal, enabling them to draw blood in
certain limited circumstances even without a search
warrant.
Id. at 615-616. The Court has since invalidated its interpretation. Implied consent
that has been withdrawn or revoked is not a substitute for the voluntary consent
required by the Fourth Amendment. State v. Villarreal, No. PD–0306–14, –––
S.W.3d ––––, 2014 WL 6734178 at *11 (Tex. Crim. App. Nov. 26, 2014). “[T]he
provisions in the Transportation Code do not, taken by themselves, form a
constitutionally valid alternative to the Fourth Amendment warrant requirement.”
Id. at *20.
Because a critical assumption in the Beeman Court’s analysis has been
invalidated, its interpretation of the scheme as a whole is no longer reliable.
Sections 724.012 – 724.013 clearly provide for different handling of certain DWI
14
cases where aggravating circumstances are present, as opposed to first-offense, non-
aggravated DWI cases. The Beeman Court assumed that this different handling
allowed warrantless nonconsensual blood testing in aggravated cases, and thus
found it “absurd” to suggest that the scheme would limit the ability of an
investigating officer to obtain a search warrant in non-aggravated cases. Now that
the Court acknowledges that a warrant (or exigent circumstances) is always
required for nonconsensual testing, it is not absurd to conclude that the scheme
serves to delineate circumstances in which a nonconsensual blood draw is
permitted.
It seems unlikely that the legislature enacted sections 724.012 – 724.013 to
simply define when police have the discretion, as opposed to a mandatory duty, to
seek a warrant, as suggested by the State (State’s Brief at 36). The word “warrant”
does not even appear in those sections. The fact that section 724.013 is titled
“Prohibition on Taking Specimen if Person Refuses; Exception” does not suggest
that the legislature intended to reserve an unrestricted right to seek a warrant.
Established rules of statutory construction generally require that, where an express
exception exists in a statute, the statute must apply in all cases not excepted.
Roberts v. State, 940 S.W.2d 655, 659 (Tex. Crim. App. 1996); Garcia v. State, 829
15
S.W.2d 796, 800 (Tex. Crim. App. 1992). The legislature created one exception to
its “prohibition” – the enumerated circumstances in section 724.012 (b).
In fact, in Villarreal the Court acknowledged that Beeman was circumscribed
in part, but noted that “[t]he holding in Beeman, that an officer may obtain a search
warrant even where implied consent statutes would authorize an involuntary blood
draw, remains good law.” Id. at *20 & n.15. Notably, the Court did not reaffirm the
analysis in Beeman on the issue of whether an officer may obtain a warrant even
where implied consent statutes would not authorize an involuntary blood draw, as
in the instant case.
Furthermore, there is nothing absurd in interpreting a Texas statute so as to
provide more protection than the federal constitution, particularly in the area of the
acquisition of evidence in criminal investigations. The Court of Criminal Appeals
found that “there is nothing logically absurd” in Article 38.23 of the Texas Code of
Criminal Procedure, despite that fact that it expands beyond the reach of the Fourth
Amendment by providing protection against unlawful searches by private citizens.
State v. Johnson, 939 S.W.2d 586, 588 (Tex. Crim. App. 1996). Texas is the only
jurisdiction in the country to afford this protection. Likewise, Texas is the only state
in which the legislature has provided more protection to criminal defendants by
rejecting the inevitable discovery exception to the exclusionary rule. State v.
16
Daugherty, 931 S.W.2d 268, 269-70 (Tex. Crim. App. 1996). Texas statutes
provide more protection than the federal constitution provides by permitting both
judge and jury to pass upon the admissibility of evidence when a claim is made that
it was obtained “in violation of the law.” TEX. CODE CRIM. PROC. ANN. arts. 38.22,
38.23 (West 2005). And the Texas legislature has enacted more stringent rules on
the admissibility of confessions than those imposed by the federal constitution. TEX.
CODE CRIM. PROC. ANN. arts. 38.22 (West 2005). In a state where the legislature
has demonstrated a commitment to provide greater privacy rights for criminal
suspects, there can be no argument that doing so is absurd.
Reply Regarding Issue Four:
The State asserts that Appellant has inadequately briefed this issue by failing
to include record citations. Records citations for the facts relevant to this issue were
provided in the statement of facts section titled “Evidence Concerning the
Reliability of the Blood Specimen Analysis,” but to further assist the Court, this
section of the brief is reproduced below, supplemented with records citations.
A. Standard of Review
An appellate court reviewing a trial court’s ruling on the admissibility of
evidence must utilize an abuse of discretion standard of review. Prystash v. State, 3
S.W.3d 522, 527 (Tex. Crim. App. 1999). The appellate court must uphold the trial
17
court’s ruling if it was within the zone of reasonable disagreement. Montgomery v.
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).
B. Applicable Law
Before admitting expert testimony under Texas Rule of Evidence rule 702,
the trial court should determine that the expert is qualified, the opinion is reliable,
and the evidence is relevant. See TEX.R. EVID. 702; Vela v. State, 209 S.W.3d 128,
131 (Tex. Crim. App. 2006); Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim.
App. 2000). The trial court must be satisfied that three conditions are met before
admitting expert testimony: (1) the witness's knowledge, skill, experience, training,
or education must qualify him as an expert on a particular subject matter; (2) the
subject matter that forms the basis of a witness's testimony must be based on a valid
scientific theory and on a valid technique that has been properly applied on the
occasion in question; and (3) the expert testimony will assist the factfinder in
deciding the case. Vela, 209 S.W.3d at 131, 133. If the underlying facts or data do
not provide a sufficient basis for the expert’s opinion, the opinion is inadmissible.
TEX.R. EVID. 705(c); Vela, 209 S.W.3d at 131–35.
In Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589-90, 113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993), the United States Supreme Court held that when the
subject of the expert’s testimony is “scientific knowledge,” the basis of his
18
testimony must be grounded in the accepted methods and procedures of science.
The Texas Court of Criminal Appeals adopted several procedural and substantive
limitations upon the admission of expert scientific testimony to ensure that
unreliable expert testimony is excluded from the jury's consideration. Coble v.
State, 330 S.W.3d 253, 273 (Tex. Crim. App. 2010); Kelly v. State, 824 S.W.2d
568, 572–73 (Tex. Crim. App. 1992). Before scientific evidence may be admitted,
the trial court must conduct a hearing outside the presence of the jury to determine
whether the proponent has established its reliability. Jackson, 17 S.W.3d at 670. In
order for scientific evidence to be reliable, “(a) the underlying scientific theory must
be valid; (b) the technique applying the theory must be valid; and (c) the technique
must have been properly applied on the occasion in question.” Vela, 209 S.W.3d at
133 (quoting Kelly, 824 S.W.2d at 573). The trial court's essential gatekeeping role
is to ensure that evidence that is unreliable because it lacks a basis in sound
scientific methodology is not admitted. Id. For expert testimony to be admissible
under this rule, the party offering scientific expert testimony must demonstrate by
clear and convincing evidence that this testimony is sufficiently reliable and
relevant to assist the factfinder in reaching accurate results. Kelly, 824 S.W.2d at
572.
In Kelly, the Court of Criminal Appeals set out the following list of
19
nonexclusive factors that a trial court can consider in determining scientific
reliability: (1) the extent to which the underlying theory and technique are accepted
as valid by the relevant scientific community; (2) the qualifications of the testifying
expert; (3) the existence of literature supporting or rejecting the underlying
scientific theory and technique; (4) the potential error rate; (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 who applied the technique in this case. Kelly, 824
S.W.2d at 573; Coble, 330 S.W.3d at 273 n. 40.
C. The State failed to establish by clear and convincing
evidence that the blood serum analysis was reliable
because the method was not properly validated.
Texas and federal courts have found the gas chromatography test to be a
generally reliable method for identifying compounds, and it has been generally
accepted in the scientific community. See Combs v. State, 6 S.W.3d 319, 322 (Tex.
App.-Houston [14th Dist.] 1999, no pet.); Jones v. State, 716 S.W.2d 142, 147
(Tex. App.-Austin 1986, pet. ref'd); Wright v. State, 853 S.W.2d 154, 155 (Tex.
App.-Corpus Christi 1993, pet. ref'd); United States v. Bynum, 3 F.3d 769, 772 (4th
Cir. 1993); Bolieu v. State, 779 S.W.2d 489, 490 (Tex.App.-Austin 1989, no pet.).
Appellant does not challenge the underlying science of gas chromatography. The
20
issue in this case is whether testimony regarding blood serum analysis is
sufficiently reliable where the validation study supporting the method was
conducted under different parameters.
In Daubert, the United States Supreme Court held that “in order to qualify as
‘scientific knowledge,’ an inference or assertion must be derived by the scientific
method.” 509 U.S. 579, 589-90, 113 S. Ct. 2786. “Proposed testimony must be
supported by appropriate validation.” Id., 509 U.S. at 590. Expert testimony is
unreliable if it is based on unreliable data, or if the expert draws conclusions from
his underlying data “based on flawed methodology.” Merrell Dow Pharms., Inc. v.
Havner, 953 S.W.2d 706, 714 (Tex. 1997).
The following facts are not in dispute. The internal operating standards of the
HPD Crime Lab and the standards of its accrediting agency require a method to be
properly validated before the method is used for analysis of forensic evidence
(6RR129; 7RR14; 19-20, 61). A validation study was conducted several months
prior to the analysis of Appellant’s specimen (7RR14). The validation study was
necessary after the crime lab replaced the capillary columns of the headspace
chromatograph (7RR108-109, 140; 8RR159-160). The purpose of a validation
study is to demonstrate that a particular instrument at specific parameters will
produce scientifically reliable results (7RR172-73). Accordingly, parameters may
21
be manipulated while a method is being developed but should remain fixed during
the validation study (8RR172-173).
HPD Criminalist Laura Mayor, who conducted the validation study and the
analysis of Appellant’s specimen, acknowledged that the bulk of the study,
comprising all of the critical components of the study, was conducted with the vial
oven set at 60 degrees Celsius (6RR131; 7RR26-37, 57-59; DX20). This parameter
was changed to 70 degrees on the fourth and final day of the study, where it
remained for subsequent forensic casework, including the analysis of Appellant’s
sample (DX20; DX21; 6RR131; 7RR26-37, 58). The validation report stated that
the study was conducted at the 70-degree setting, even though the portions of the
study conducted at 60 degrees were not subsequently repeated after the change to
70 degrees (DX20; DX21).
Defense expert Amanda Culbertson testified that industry standards do not
allow changing parameters without revalidation; accordingly, the method was not
validated and the results were not valid or reliable (7RR158, 166, 176-177). At
issue is whether the State nevertheless established by clear and convincing evidence
that revalidation was not necessary and that the method used to analyze Appellant’s
specimen was reliable. This issue will be analyzed in light of the Kelly factors
relevant to this inquiry.
22
(1) The extent to which the underlying theory and technique are
accepted as valid by the relevant scientific community.
The science underlying headspace gas chromatography is generally accepted
as valid in the scientific community. But the State failed to establish any general
acceptance of the the practice of analyzing forensic evidence while deviating from
validated parameters. None of the State’s experts were able to identify any study,
reference, or authority that sanctioned deviating from validated parameters in
forensic analysis (7RR91; 8RR129-130); in fact, both Mayor and Arnold testified
that parameters should remain fixed during method validation and all forensic
analysis conducted pursuant to that method (6RR148-49; 8RR172-73).
None of the State’s experts were able to identify any accepted or established
criteria, standards, or principles governing whether a change in parameters
necessitates revalidation. For example, the State presented no evidence of any
general acceptance of Arnold’s opinion that revalidation is not necessary in the
absence of empirical data indicating that a parameter change impacted the
instrument’s performance.
Moreover, the State’s experts each relied solely upon the results produced by
the instrument from analysis performed after and independent of the validation
study as demonstrating the reliability and accuracy of the instrument at the 70-
degree setting. Neither Mayor nor Arnold presented any evidence indicating general
23
acceptance of the practice of relying on post-validation analysis of controls and
calibrators, in lieu of a proper validation, to demonstrate the reliability of an
instrument or method.
“[T]he party seeking to have the district court admit expert testimony must
demonstrate that the expert’s findings and conclusions are based on the scientific
method, and, therefore, are reliable.” Moore v. Ashland Chemical, Inc., 151 F.3d
269, 276 (5th Cir.1998). “This requires some objective, independent validation of
the expert’s methodology. The expert’s assurances that he has utilized generally
accepted scientific methodology is insufficient.” Id. In the field of gas
chromatography, the scientific method requires a properly conducted, fully
documented validation study, as set forth in the internal operating standards of the
HPD Crime Lab and the standards of its accrediting agency (7RR20-21; 8RR158-
59). But the State presented only the experts’ assurances that the deviation from the
validated parameters did not affect the reliability of the forensic analysis. Lab
Assistant Director Arnold testified that method deviation required documentation
and supervisor clearance, but also testified that an analyst has discretion to
determine whether a particular deviation required clearance and documentation
(8RR149). Criminalist Mayor testified that she “must have had permission” to
change the parameter (7RR53), but there was no evidence that the change had been
24
documented (7RR145-146). The State failed to demonstrate that anything other
than standardless discretion governed the lab’s practice of deviating from reported
validation parameters.
“[U]nder the regime of Daubert a district judge asked to admit scientific
evidence must determine whether the evidence is genuinely scientific, as distinct
from being unscientific speculation offered by a genuine scientist.” Coble v. State,
330 S.W.3d 253, 277 (Tex. Crim. App. 2010), quoting Rosen v. Ciba–Geigy Corp.,
78 F.3d 316, 318 (7th Cir. 1996). Because the State’s experts failed to identify any
source demonstrating general acceptance of or any governing criteria for deviation
from validated parameters, their opinions amount to unscientific speculation and do
not meet the clear and convincing standard of reliability.
There was no evidence showing any general acceptance of the practice of
changing parameters without revalidation so as to contradict the defense expert’s
testimony that this practice violated industry standard.
(2) The existence of literature supporting or rejecting
the underlying scientific theory and technique.
None of the State’s expert witnesses identified any books, articles, or
journals that shed any light on the propriety of changing parameters without
revalidation. No objective source material was identified that would authorize
deviations from validated parameters in casework analysis. No objective source
25
material was identified that would establish criteria for determining whether a
parameter change required revalidation. No objective source material was identified
that would authorize the use of calibrators and controls, in lieu of proper validation,
to demonstrate the instrument’s reliability. The State presented no evidence of any
literature supporting Arnold’s opinion that revalidation is not necessary in the
absence of empirical data indicating that a parameter change impacted the
instrument’s performance.
According to the HPD Quality Assurance Manual, all technical procedures
must be properly validated (8RR158-59); deviations from methods must be justified
and documented (8RR149); and use of non-standard methods must be approved by
a supervisor (8RR149). Yet Mayor could not recall the circumstances of the
temperature change, and neither Mayor nor Arnold could identify documentation
showing justification or supervisor approval for the change (7RR53). Thus, the
lab’s practices departed from the standards described in the one and only published
resource brought to the court’s attention with regard to method deviation.
(3) The qualifications of the testifying experts.
Criminalist Mayor earned a bachelor’s degree in forensic chemistry and a
master’s degree forensic science, and had two years’ experience analyzing blood
samples in the HPD Crime Lab (6RR73-74). But the evidence showed that the
26
questionable validation study was the first she had conducted (7RR21), and her
testimony demonstrated many gaps in her knowledge of the subject matter. Mayor
admitted that she did not know whether the lab’s accrediting agency permitted any
deviation from validated parameters in analyzing forensic evidence (7RR90);
whether there were any studies or theories permitting deviation from validated
parameters (7RR91; 8RR129-30); and whether every volatile would respond
similarly to an increase in temperature (7RR74).
Assistant Director Arnold’s educational background was not specific to
forensic science but included bachelor’s degrees in biology, biochemistry, and
medical technology (7RR105). Arnold had almost 20 years’ experience working in
crime laboratories and served as an auditor for a laboratory accrediting board.1
Despite these qualifications and credentials, Arnold was unable to identify any
independent objective source material establishing standards or criteria for
evaluating whether a parameter change required revalidation. “Although expert
opinion testimony often provides valuable evidence in a case, ‘it is the basis of the
witness’s opinion, and not the witness’s qualifications or his bare opinions alone,
that can settle an issue as a matter of law; a claim will not stand or fall on the mere
ipse dixit of a credentialed witness.’” Burrow v. Arce, 997 S.W.2d 229, 235 (Tex.
1 8RR138-140.
27
1999). Arnold’s assurances that the deviation did not affect the reliability of the
analysis are mere ipse dixit, unsupported by any objective, independent basis.
(4) The potential error rate.
None of the State’s expert witnesses was able to identify or quantify the
effect of a 60-to-70-degree vial oven temperature change on the instrument’s
performance. Mayor acknowledged that the increase in temperature increased the
instrument’s sensitivity, resulting in nearly double area counts for volatiles (7RR66-
70), but she did not know if every volatile would respond similarly to a temperature
increase (7RR74). Mayor admitted that the temperature change could affect the
instrument’s performance with regard to the limit of detection (7RR95).
Arnold testified that, based simply upon his experience, he would not expect
the temperature change to have any impact on analytical results (8RR147). But this
opinion was not substantiated by any reference or independent, objective source,
and did not rise to the level of establishing a demonstrable error rate.
(5) The availability of other experts to test and evaluate the technique.
The State presented no evidence that other experts were available to evaluate
the practice challenged here, conducting forensic analysis at a 70-degree vial oven
temperature when the essential components of the validation study were conducted
at a 60-degree setting. It would seem that this practice cannot be adequately tested
28
and evaluated by other experts because a validation study is specific to a particular
instrument. The State’s experts acknowledged that each headspace gas
chromatograph performs differently and that the purpose of a validation study is to
demonstrate that a particular instrument performs reliably at specific parameters
(7RR13, 110). Accordingly, access to the specific instrument is necessary to
reliably test and evaluate the practice of deviating from certain parameters.
Moreover, Arnold testified that the use of fixed parameters is necessary so
that other scientists can replicate scientific work (8RR173). This principle, a
cornerstone of the scientific method, is wholly incompatible with the lab’s practices
of reporting certain fixed parameters in validation study documentation when
different parameters were used for the critical parts of the study, and allowing
analysts standardless discretion to deviate from validated parameters in conducting
forensic analysis.
(6) The clarity with which the underlying scientific theory
and technique can be explained to the court.
The testimony of State’s experts was rife with contradiction regarding the
propriety of changing parameters without revalidation.
Both experts acknowledged that the standards of the lab and its accrediting
agency required all forensic analysis to be conducted in accordance with validated
methods (7RR20-21; 8RR158-59). Mayor testified that no test results may be
29
reported without a validated method in place (6RR129; 7RR14, 19-20, 61). Mayor
testified that the use of calibrators and controls in conjunction with forensic analysis
was not a substitute for proper method validation (7RR62). Yet both Mayor and
Arnold relied solely on the instrument’s results from runs conducted subsequent to
and independent of the validation study to demonstrate the instrument’s reliability
at the unvalidated 70-degree setting.
The evidence showed that the critical components of the validation study –
linearity, precision, limit of detection, and limit of quantification -- were conducted
at the 60-degree setting (7RR57-59). Only on the fourth and final day of the study
was the temperature changed to 70 degrees (6RR131; 7RR26-37, 58, DX20). The
only portion of the study conducted at 70 degrees was a non-essential component
recently added to the validation template to demonstrate that the presence of other
volatiles would not interfere with the quantification of ethanol (7RR58, 115-16).
Mayor and Arnold testified that linearity is established by running a calibration
curve, and that linearity must be established before any other validation criteria may
be studied (7RR26-29; 114). But no calibrators were run on the fourth day of the
study at the 70-degree setting (8RR92), and no study components were conducted
at 70 degrees to demonstrate precision, limit of detection, or limit of quantification
(7RR57-59). The State presented no evidence showing proper validation of the
30
method at 70 degrees.
Accordingly, the State’s experts were forced to resort to an ad hoc review of
the results produced by the instrument during subsequent forensic casework to
assess whether the parameter change had impacted the instrument’s performance.
Arnold testified that the method “has proven itself in the course of the year that it
was in place.”2 Defense expert Amanda Culbertson explained the fallacy of this
notion: validation is a condition precedent to expressing the results of any control
or sample; otherwise, there would be no need for validation studies (7RR156, 168).
Neither Mayor nor Arnold provided a coherent explanation of the purpose of a
validation study if the reliability of the instrument can be demonstrated solely
through the use of calibrators and controls in conjunction with forensic analysis.
Both Arnold and Mayor agreed that parameters may be manipulated during
method development but should remain fixed for the duration of the validation
study (6RR148-49; 8RR158-59). Accordingly, the first page of the validation report
identified the specific parameters purported to have been validated by the study
(DX20). Arnold’s opinion that reliability may be assumed in the absence of
empirical evidence of any impact caused by the deviation (7RR135; 150) is
irreconcilable with the industry’s requirement that reliability must be affirmatively
2 8RR150.
31
demonstrated at fixed parameters by a validation study.
Mayor testified that volatiles would respond proportionately to a temperature
increase, but later testified that she did not know whether every volatile would
respond similarly to an increase in temperature (7RR59-60, 68-69, 74).
Neither Mayor nor Arnold explained with sufficient clarity why a specific
vial oven temperature was included among the fixed parameters in the study report
if the temperature setting was irrelevant to the instrument’s performance and
identical results could be obtained at a range of temperatures.
Arnold acknowledged that a 10-degree vial oven temperature change would
constitute an “analytical change,” and also testified that any analytical change
would require revalidation (7RR145-46). Yet Arnold testified that revalidation was
not necessary in the absence of empirical data showing that the deviation impacted
analytical results (7RR135, 150).
Neither Arnold nor Mayor sufficiently explained the distinction between a
“significant” or “substantial” parameter change that would necessitate revalidation,
versus an insignificant change that would not. Neither offered any criteria
governing an analyst’s discretion to deviate from validated parameters. Neither
offered any standards governing whether a deviation required supervisor approval
and documentation.
32
In sum, the testimony of the State’s witnesses provided few, if any, definitive
answers regarding the practice of deviating from validated parameters. The only
substance that may be distilled from the oblique testimony of the State’s experts is
that a proper validation study is required, except when it is not; a validation study
must be conducted at fixed parameters but sometimes parameters may be changed;
the use of calibrators and controls in conjunction with forensic analysis is not a
substitute for proper validation, except when it is; and a parameter change requires
justification and documentation, except when it does not. This vacillation and self-
contradiction cannot supply clear and convincing evidence that a scientific
technique is sound. An intelligible explanation, at the very least, is required where a
crime lab is found to have made a false or inaccurate entry in its method validation
documentation in conjunction with an apparent deviation from its own internal
operating procedures and the standards of its accrediting agency.
The lab employees’ assurances that the forensic analysis was nevertheless
reliable are nothing more than ipse dixit. It might seem like common sense that
method parameters may be changed as long as there is no evidence of any impact,
but common sense is no substitute for the scientific method in hard science fields
such as analytical chemistry. An expert’s assurances that he has utilized generally
accepted scientific methodology are insufficient in the absence of objective,
33
independent validation of the expert’s methodology. “Scientific evidence which is
not grounded ‘in the methods and procedures of science’ is no more than
‘subjective belief or unsupported speculation.’” Coble, at 280, quoting E.I. du Pont
de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995).
In Coble, the Court of Criminal Appeals evaluated the reliability of the
testimony of a forensic psychiatrist, Dr. Coons, on the issue of future dangerousness
in a capital murder trial. The Court found that the Dr. Coons was a genuine forensic
psychiatrist with ample qualifications, but that his methods were not supported by
any objective source such as books, journals, or articles. 330 S.W.3d at 277.
Without any independent validation of his methods, Dr. Coons’ testimony was mere
ipse dixit. Id. His reliance upon common-sense factors in his analysis was no
substitute for showing that the method was generally accepted and empirically
validated by other scientists. Id. The Court concluded that Dr. Coons’ testimony did
not meet the clear and convincing standard for reliability, even under the more
flexible standards for “soft sciences,” and that the trial court abused its discretion in
admitting it.
The same deficiencies are present here. None of the State’s experts identified
any independent, objective source supporting their assurances that the parameter
deviation did not require revalidation. This deficiency alone renders their testimony
34
unreliable. But there are other problems as well. The experts offered no satisfying
explanation for errors/inaccuracies in the validation documentation. The experts
failed to identify any standards governing an analyst’s discretion to deviate from
validated methods. This standardless discretion is no different from the
“idiosyncratic” method employed by Dr. Coons in Coble. 330 S.W.3d at 277. If
this type of unsupported methodology is inadequate in soft sciences, it certainly has
no place in hard science fields such as forensic chemistry.
More importantly, the experts’ reliance on non-validated results to
demonstrate the instrument’s reliability is wholly irreconcilable with the principle
that a validated method is a condition precedent to expressing results of any kind. If
the testimony is this case is sufficiently reliable, then the industry-standard
requirements of validation and maintaining validation documentation are nothing
but mere formalities which may be disregarded as long as a lab employee testifies
that a method “has proven itself” by virtue of casework analysis.
Accordingly, the State failed to demonstrate by clear and convincing
evidence the reliability of the technique applied as required for a hard science,
particularly one dependent upon the proper functioning of complex instruments.
The trial court abused its discretion in admitting the expert testimony concerning
that blood specimen analysis.
35
D. The error affected Appellant’s substantial rights.
The harm standard for non-constitutional error is found in Texas Rule of
Appellate Procedure 44.2(b). Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim.
App. 2000). A substantial right is affected, requiring reversal pursuant to Rule
44.2(b), when the error had a substantial and injurious effect or influence on the
jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If the
error had no influence or only a slight influence on the verdict, it is harmless.
Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). If it is unclear
whether the error affected the outcome, the court should treat it as harmful. Webb v.
State, 36 S.W.3d 164, 182 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd).
The blood specimen analysis testimony likely had a substantial effect on the
jury’s verdict. The jury was instructed on the per se theory of intoxication based on
alcohol concentration of 0.08 or more (CR115). During deliberations, the jury
specifically requested the “chomatographs” as well as the video of the blood draw.3
Additionally, the other evidence of intoxication, Appellant’s performance on the
field sobriety tests, was called into question in light of Appellant’s chronic medical
condition, syncope. The evidence is undisputed that Appellant reported suffering
from an episode of this condition while in police custody, shortly after she had
3 CR119.
36
performed the sobriety tests, to the extent that she was unable to move or stand up
(2RR65; 5RR81, 164; 9RR32, 79). Appellant’s physician testified that Appellant’s
lack of balance depicted on the scene video resembled a syncope episode because
her balance suffered after a change of position and improved after time to
equilibrate (2RR122). In light of the plausible innocent explanation for Appellant’s
performance on the sobriety tests, the expert testimony that Appellant’s BAC was
substantially above the legal limit had more than a slight influence on the verdict,
and Appellant’s conviction must be reversed.
PRAYER
Appellant respectfully requests that the Court reverse her conviction and
remand for a new trial.
Respectfully submitted,
/s/ NORMAN J. SILVERMAN
Texas Bar No. 00792207
917 Franklin, 4th Floor
Houston, Texas 77002
(713) 526-1515
(713) 526-1798 (FAX)
lawyernorm@msn.com
ATTORNEY FOR APPELLANT
37
CERTIFICATE OF SERVICE
This document has been electronically served on the following parties
contemporaneously and in conjunction with e-filing on January 5, 2015.
CARLY DESSAUER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
dessauer_carly@dao.hctx.net
curry_alan@dao.hctx.net
/s/ Norman J. Silverman
CERTIFICATE OF COMPLIANCE
This document has been prepared with Microsoft Word 2010, and the
sections covered by Texas Rule of Appellate Procedure 9.4(i)(1) contain 6,989
words according to the program’s word-count function.
/s/ Norman J. Silverman
38