KELLER, P.J., delivered the opinion of the Court in which PRICE, KEASLER, HERVEY, COCHRAN and ALCALA, JJ., joined.
The present case involves the admissibility of scientific evidence under Texas Rule of Evidence 702 and Kelly v. State.
A. Relevant Facts
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's
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.
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."
B. Rule 702 Hearing
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.
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:
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
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:
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 measured to determine the basic concentration of the drugs in the blood.
Hawkins testified that she found the EMIT test to be "a reliable presumptive test before I confirm." When asked about the reliability of EMIT tests for determining the existence of cocaine specifically, Hawkins clarified that cocaine breaks down quickly in the body and metabolizes into benzoylecgonine, and that EMIT actually tests for the existence of benzoylecgonine, not cocaine. Hawkins then agreed that EMIT is a reliable presumptive test to determine whether cocaine has been ingested, stating: "It is a reliable test before the [GC/MS] confirmation to determine which analites [are present in the blood] and in what concentration."
Hawkins testified that she has conducted hundreds of GC/MS tests on blood samples following positive EMIT tests for cocaine, and that out of the hundreds, Briggs's is the only one that has come out negative.
Hawkins testified that the EMIT test is considered a reliable presumptive screen by the forensic toxicology community in Texas and that the manufacturers designed EMIT as a screening device and recommend confirmation tests to determine specific analite values. She agreed that the results of an EMIT test alone
Appellant's third witness was Kathy Erwin, the forensic scientist at the DPS crime laboratory who performed the GC/MS test on Briggs's blood for amphetamine and methamphetamine over one year after Briggs's blood had been drawn. Erwin testified that she attended Texas Women's University where she earned a bachelor of science degree in chemistry with a minor in biology, as well as a master of science in chemistry with an emphasis on analytical chemistry. She further testified that she had completed postgraduate courses in forensic toxicology at the University of Florida and had recently been certified as a forensic toxicology specialist by the American Board of Forensic Toxicology. Erwin had been employed by DPS for ten years.
The focus of Erwin's testimony was the connection between ingesting cocaine and amphetamines and suffering heart failure. However she also testified as to the reliability of EMIT testing. Erwin testified that she was familiar with EMIT, and she explained the scientific basis of the test:
Erwin testified that the EMIT test is a reliable device for determining whether there are drugs or chemicals in a person's body. She agreed that EMIT was designed as a screening device and that, under manufacturer recommendations and DPS protocol, positive EMIT tests were followed by a confirmation test before final results were reported.
Appellant offered two articles discussing the scientific principle underlying EMIT and the value of EMIT testing as an initial screening procedure. In one of the articles, authors Lu and Taylor state that "drug screening through urinalysis is a widely accepted tool for rapid detection of potential drug use at a relatively low cost" and a "potentially useful method for detecting and monitoring drug use in a variety of contexts, including the criminal justice system."
In the second article, author George describes EMIT as a "homogeneous enzyme immunoassay [technique] based on the competition for antibody binding sites," where a "drug concentration in [a] sample can be measured in terms of enzyme activity."
Published Judicial Opinions
Appellant also offered twelve published judicial opinions from other jurisdictions.
The trial court excluded the EMIT test results. Based on the evidence admitted at trial, the jury convicted appellant of intoxication manslaughter. Punishment was assessed at twelve years' imprisonment, and an $8000 fine.
C. Court of Appeals
On appeal, appellant argued that he had sufficiently established that the EMIT test results were reliable and relevant, that the trial court erred in excluding this evidence, and that this exclusion deprived appellant of his constitutional right to present a defense. The State's response did not address reliability but argued only that the EMIT test results were irrelevant. After a brief discussion of the facts, the Court of Appeals affirmed the judgment of the trial court with respect to the EMIT test results, holding that "the EMIT test was positive for cocaine, but the confirmation GC test was negative. EMIT test results are not reliable without a positive confirmation test. The trial court did not abuse its discretion in excluding the test results."
A. Appellant's Argument
Appellant contends that the Court of Appeals erred in holding that EMIT test results are not reliable without a confirmation test.
B. Legal Framework
Rule 702 provides that 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.
The proponent of scientific evidence must persuade the trial court through clear and convincing evidence that the proposed evidence is reliable.
In some cases the first two prongs of the Kelly test — the validity of the underlying scientific theory and the validity of the technique applying that theory — can be determined through judicial notice, thereby relieving the proponent of the burden of producing evidence on that question.
C. Cases Discussing EMIT
EMIT tests have been accepted as reliable and admissible in courts across numerous jurisdictions, including several federal courts. In Jones v. United States, the DC Court of Appeals confronted the issue of whether two positive EMIT test results obtained from the same sample were sufficiently reliable for admission into evidence.
The Jones court also looked to a recent case in which a trial court from its own jurisdiction had addressed the issue of EMIT reliability. In that case, United States v. Roy, the defendant had allegedly violated conditions of his pretrial release by ingesting drugs, and the government's evidence consisted solely of a series of positive EMIT drug test results.
The DC Court of Appeals in Jones ultimately concluded that "EMIT test results are presumptively reliable and thus generally admissible into evidence in every case."
In Spence v. Farrier, the Eighth Circuit Court of Appeals held that prison disciplinary actions based on double EMIT tests
In another federal appellate opinion, Higgs v. Bland, the Sixth Circuit Court of Appeals vacated a district court's holding enjoining prison officials from taking disciplinary action against inmates based solely on unconfirmed, positive EMIT tests.
Federal district courts have also found EMIT tests to be reliable. In Jensen v. Lick, a federal district court in North Dakota held that a prison official could impose sanctions on a prisoner based upon a single, unconfirmed, positive EMIT test.
In Peranzo v. Coughlin, a federal district court in New York held that "with a 98 + % rate of accuracy," double EMIT testing is "sufficiently reliable so that the use of the results as evidence, even as the only evidence, in a disciplinary hearing does not offend due process," nor does "the introduction of the results as an element to be considered in parole decisions."
EMIT tests have also been accepted as reliable and admissible in several state courts. In Driver v. State, the Alabama Court of Criminal Appeals held that the positive results of two routine double EMIT tests conducted on two separate occasions were sufficiently reliable for use in prison disciplinary proceedings involving an inmate's alleged use of controlled substances.
In Smith v. State, a plaintiff's probation was revoked solely on the basis of a single, positive, unconfirmed EMIT test.
The Supreme Court of Indiana addressed the reliability of EMIT testing in Carter v. State.
Some state courts have acknowledged the reliability of EMIT tests in cases where non-EMIT drug tests are at issue. In these cases, the courts have admitted the non-EMIT drug tests based upon their similarities to EMIT. For example, in Crutchfield v. Hannigan, a Kansas Court of Appeals held that the results of an ONTRAK test, an immunoassay test similar to EMIT, were reliable and admissible in a prison disciplinary hearing.
Similarly, in Penrod v. State, an Indiana Court of Appeals upheld the admission of ADx drug test results in a parole revocation hearing based solely on the conclusion that ADx and EMIT are "basically the same technology."
Finally, in People v. Nolan, a California court of appeals addressed the admissibility of ADx test results by comparing ADx to EMIT.
The case law clearly demonstrates that EMIT testing is widely used and has been repeatedly accepted as sufficiently reliable for admission into evidence in both state and federal courts.
The reliability of EMIT testing is an issue of first impression in this Court.
The Acceptance of the Underlying Scientific Theory and Technique by the Scientific Community
The expert witness testimony demonstrates that the underlying scientific theory and technique of the EMIT test are accepted as valid by the accredited DPS
Beyond Texas, the articles offered by appellant together with the pervasiveness of EMIT testing in the case law demonstrate that the underlying theory and technique of the EMIT test are widely accepted as valid in the greater scientific community. The articles discuss EMIT as one of the many immunoassays that have gained wide acceptance and are internationally used in analytical laboratories. The various courts in the cases cited have found that EMIT testing is widely used and has reached a level of general acceptance. In one of the cases, the DC Court of Appeals noted that since 1981 or 1982, EMIT has been in use at the National Institutes of Health and in private industry, the military, and various law enforcement agencies, as well as in hospitals in several states for the purposes of drug treatment, emergency room diagnosis, and the monitoring of certain drugs.
The Existence of Literature Supporting or Rejecting the Underlying Scientific Theory and Technique
At the rule 702 hearing, expert witness Barton agreed that there is literature supporting EMIT as a reliable screening test. Indeed, as we previously noted, the articles offered by appellant discuss the value of EMIT testing as an initial screening procedure and the extent to which the underlying theory and technique are accepted as valid. The cases on the record provide further evidence of the existence of literature supporting the underlying scientific theory and technique of EMIT testing, as many of the cases cited mention surveys, reports, and studies on the subject of EMIT reliability.
The Clarity with which the Underlying Scientific Theory and Technique can be Explained to the Court
Appellant's experts clearly explained the underlying theory and technique of EMIT testing to the trial court. From their testimony, the trial court could understand that EMIT is a screening test based on enzyme reactions. As the experts explained, certain antibodies will react only with a particular class of drugs — "kind of like a lock-and-key mechanism." Antibodies are added to blood samples placed in the EMIT device and reactions are made apparent by color changes. These reactions are indicative of the presence of one of six specific classes of drugs. The reactions are then measured to determine the basic concentrations of drugs in the blood.
The Potential Rate of Error of the Technique
The expert testimony at the Rule 702 hearing suggests that the potential rate of error in EMIT testing is very low. Barton testified that out of the thousands of EMIT tests that she had performed at DPS, she had never personally encountered a false positive. Hawkins testified that she had performed hundreds of GC/MS tests at DPS following positive
We note that although the GC/MS test for cocaine in Briggs's case was negative, the evidence on the record suggests that this result was not indicative of a false positive EMIT test. Barton testified that the EMIT results indicated a presence of cocaine metabolites in Briggs's blood that fell into the third highest level of concentration. The GC/MS test was conducted more than one year after Briggs's blood was drawn. Both Barton and Hawkins explained that cocaine breaks down quickly in the blood and that the negative GC/MS test in Briggs's case could likely be attributed to the absence of a preservative in Briggs's blood sample. Significantly, the record shows that the GC/MS test did in fact show traces of cocaine in Briggs's blood even after this passage of time, but at a level below the minimum required by DPS protocol to be reported as positive. This evidence suggests that the negative GC/MS test in this case does not reflect upon the scientific accuracy of the EMIT test.
The Availability of Other Experts to Test and Evaluate the Technique
Appellant's experts testified as to the validity and reliability of the EMIT test and were subject to cross-examination by the State. Additionally, many of the courts in the cases cited relied upon expert evaluations of the EMIT technique from their records. These experts included a technical service representative and pharmokinetics expert employed by the company that developed and manufactures the EMIT test,
The Qualifications of the Experts Testifying
All three of appellant's experts, Barton, Hawkins, and Erwin, provided testimony relating to the factors discussed above. For that reason, we look to their qualifications for assurance that we can reasonably rely on their pronouncements.
Barton testified that she earned a bachelor of science degree from the University of Texas and had completed in-house training at DPS, which consisted of taking written tests and learning the theories behind the instruments and analyses performed.
The expert testimony, scientific literature, and case law before us demonstrate that EMIT testing is highly accurate, has a low rate of error, and is widely accepted and extensively used as a reliable presumptive screen for the presence of drugs. This evidence leads us to conclude that the validity of the underlying theory and technique of EMIT has been sufficiently established. We find that even a single, unconfirmed EMIT test is reliable scientific evidence that meets the first two Kelly prongs.
The function of the reliability inquiry under Kelly v. State is to assist trial courts in weeding out so-called "junk science" so that only evidence with a basis in sound scientific methodology is admitted. The record contains sufficient evidence showing that EMIT, with or without a confirmation test, is reliable scientific evidence. We conclude that the reliability of even a single, unconfirmed EMIT test has been sufficiently established that it meets the first two Kelly prongs. We hold that the Court of Appeals erred in holding that EMIT tests are unreliable without a confirmation test, and we remand for further proceedings consistent with our opinion.
COCHRAN, J., filed a concurring opinion in which HERVEY, J., joined.
MEYERS, J., filed a dissenting opinion.
JOHNSON, J., filed a dissenting opinion.
WOMACK, J., dissented.
COCHRAN, J., concurring in which HERVEY, J., joined.
I join the majority opinion with the understanding that we are assessing only the general scientific reliability of an EMIT test. We are not addressing the question posed by Judge Meyers and Judge Johnson concerning the relevancy of this EMIT test to a disputed issue in appellant's trial. We are not addressing whether such an unconfirmed EMIT test would be admissible when offered to show some purported connection between the results of the EMIT test and the accident victim's cause of death. We are not addressing the ultimate admissibility of this "unconfirmed" EMIT test into evidence. And we are certainly not addressing the question of whether the trial court abused its discretion in excluding this evidence. Those are entirely distinct questions from the one that we resolve. And those questions are not before us.
I agree with the majority that EMIT tests are reliable without a confirmation test, but do not believe that the analysis was necessary in this case. Here, there was no evidence that the victim, Michelle Briggs, died of a heart attack. The trial court was within its discretion to exclude the EMIT test results because the relevance of the results is questionable. What the Appellant is attempting to do is show that the cocaine test indicates that the victim died of a heart attack. At best, the test could only show that the cocaine may have caused a heart attack. But there is absolutely no evidence in the record reflecting that the victim suffered a heart attack before the collision. Allowing the evidence would be like admitting ballistic test results when the facts indicate that the victim was stabbed to death. Thus, the trial court did not abuse its discretion.
The majority should have conducted a harm analysis. As Presiding Judge Keller stated in Cain v. State: "Except for certain federal constitutional errors labeled by the United States Supreme Court as `structural,' no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis." 947 S.W.2d 262, 264 (Tex.Crim.App. 1997). The majority failed to consider the harm caused by the exclusion of the test results.
Even if the Court deems the EMIT test to be relevant here, the error was harmless. Although the results of EMIT tests may be admissible without a confirmation test, the evidence here did not indicate that the victim died of a heart attack. It is unlikely that a harm analysis would show that Appellant was harmed by the exclusion of the EMIT test. Therefore, I would affirm the holding of the court of appeals.
JOHNSON, J., dissenting.
Appellant seeks to have the results of an unconfirmed EMIT test admitted as evidence that the complainant in this case was high on cocaine and amphetamines at the time of her death, thus she was responsible for the collision and her resulting death. There are a number of reasons to affirm the ruling of the court of appeals that, in the circumstances presented here, the results of an EMIT test, confirmed or unconfirmed, are not admissible.
This is what we know about the complainant's blood sample: it was drawn at some time on or after October 21, 2007, and on or before October 25, 2007; it was not in the appropriate gray-topped test tube (which contains sodium fluoride) for proper preservation of the blood; the tube contained only the blood and an anti-coagulant; the sample was received by DPS-Austin on October 25, delivered by Matthew Ford; it was taken for testing by Megan Barton about one month later, on November 21, 2007, and subjected to an EMIT test on or after that date; it was subjected to gas chromatography (GC) by Renae Hawkins on October 23, 2008, about one year after it was drawn; the results of the two tests did not match.
This is what we do not know about the complainant's blood sample: who drew the blood, where it was drawn, when it was drawn, and what conditions the blood was subject to after it was drawn and before it reached DPS. What version of the EMIT test was used?
But there are more reasons to exclude the EMIT results. EMIT is designed and sold as a screening test only. Each time that appellant tried to get either Barton or Hawkins to testify that an EMIT test is reliable for "determining the existence of drugs," the answer was always stated in terms of reliable as a "presumptive test," an "initial screening," or a "screening test," subject to confirmation by GC and mass spectroscopy (MS). Syva, the manufacturer of the EMIT test, notes that EMIT tests "provide either positive or negative results, indicating the presence of absence of a detectable drug."
Scientific evidence must not only be reliable, it must be relevant. Syva notes, "A positive result ... does not necessarily mean that the individual is intoxicated, since there is no established relationship between the amount of drug in the urine and intoxication."
Scientific tests must also be appropriate to the circumstances. Generally, one would not demand a test for fingerprints in an investigation solely of a charge of failing to signal a left turn. Syva, in response to a FAQ — who uses the drug-of-abuse immunoassays and why — answers that "[m]ajor users of EMIT drugs-of-abuse assays include hospital laboratories and emergency decrements, drug and alcohol treatment programs, parole and probation agencies, prisons, work-release programs, the U.S. military, and medical or security departments of public institutions and private industry."
Written DPS protocol requires that presumptively positive EMIT results be confirmed by GC/MS, and if a positive EMIT test is not confirmed, the forensic scientist who performed the test may not testify in court about the results.
One of a trial judge's roles is gatekeeper for admissibility of evidence. In this case, the trial judge performed admirably. He refused to admit testimony that, while "reliable" within the narrow confines of the manufacturer's guidelines, was not considered by the manufacturer or DPS as sufficiently reliable forensically; it must be confirmed by a more accurate test, preferable
The trial court's ruling may also have been influenced by the relevance requirement. Syva indicates in its EMIT brochure that benzoylecgonine, the metabolite of cocaine that is actually detected by the EMIT test, is retained in one's system for 2-4 days. Both Barton and Hawkins testified that EMIT testing could not reveal when cocaine was ingested, how it was ingested, how much was ingested, how many times the user had used cocaine, whether the user was a frequent user, or whether the user had overdosed. Even considering the unconfirmed results of the EMIT test, the complainant could have ingested cocaine 10 minutes or four days before the collision.
The cause of death, blunt force trauma, does not correlate to use of cocaine, but it does correlate to a violent collision between two automobiles. The state's collision reconstruction witness testified that the complainant's car was struck from the rear while it was in gear and stopped on the shoulder of the road with the left tires on or close to the white fog line. With its tires pointing straight ahead and traveling at about 60 miles per hour, the right front of appellant's truck struck the left rear of the complainant's car with no indication of any avoidance maneuvering or hard braking before the point of impact. About half the width of each vehicle was within the zone of impact. Even if the complainant had ingested cocaine just before impact, it could have no relevance in a crash in which appellant literally ran up the complainant's tailpipe, causing her car to violently rotate 180 and his car to use her left rear quarter panel as a spring board with enough force to launch his 5000-pound truck into a double layout somersault with a full twist. In the face of such evidence, cocaine use at some indeterminate time in some indeterminate amount had no relevance or probative value. The trial judge correctly ruled that the unconfirmed EMIT test would not be admitted, and that ruling should be affirmed.
I respectfully dissent.
The parties and the trial court also engaged in a discussion about the relevance of the EMIT test results, and appellant offered some testimony on the matter. The trial court ruling excluding the EMIT test results was based, at least in part, on a conclusion that there was no nexus between the test results and the victim's death. The Court of Appeals's opinion did not address this basis for excluding the test results, so neither do we.