Bekendam, Stephanie Lynn

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD–0452–13

STEPHANIE LYNN BEKENDAM, Appellant

v.

THE STATE OF TEXAS

ON STATE’S AND APPELLANT’S PETITIONS

FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

WICHITA COUNTY

M EYERS, J., delivered the opinion of the Court in which K ELLER, P.J.,

and J OHNSON, K EASLER, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. Price and

Womack, JJ., concurred.

OPINION

Appellant, Stephanie Lynn Bekendam, was convicted of driving while intoxicated

and sentenced to 20 years in prison and ordered to pay a $10,000 fine. She appealed,

claiming that the trial court erred in admitting the expert testimony of the Department of

Public Safety (“DPS”) forensic scientist who tested the blood sample and issued the

toxicology report. The court of appeals held that the trial court did not abuse its

Bekendam–Page 2

discretion in admitting the testimony. Bekendam v. State, 398 S.W.3d 358 (Tex.

App.–Fort Worth 2013). Appellant filed a petition for discretionary review arguing that

the court of appeals incorrectly applied the law for admissibility of expert testimony,

misconstrued Rule of Evidence 702, and decided an important question of law that has

not been settled. The State filed a cross-petition, claiming that the court of appeals failed

to address its argument that Appellant’s error was not preserved for review.

We will hold that the issue was preserved for review and overrule the State’s

ground. We will also overrule Appellant’s grounds for review and affirm the court of

appeals.

FACTS

Appellant ran a red light and hit another vehicle. Appellant and the two occupants

of the other vehicle were injured and were taken to the hospital. An EMT and a nurse

reported an odor of alcohol on Appellant’s breath, so her blood was drawn at the hospital

and was tested for alcohol. No alcohol was detected. The State requested testing for

drugs and the test was positive for cocaine. The DPS forensic scientist confirmed the

results with a second test, which showed traces of both cocaine and a metabolite which

can enter the bloodstream only by consumption of cocaine.1 However, the toxicology

report did not include the trace amount of cocaine because it was below the reportable

1

The first test conducted was the Enzyme-Multiplied Immunoassay Technique, or EMIT,

which tests for the presence of any one of six classes of drugs. The second test, the Gas

Chromatograph Mass Spectrometer, or GCMS, determines the specific drug and the amount of

the drug that is in the blood sample.

Bekendam–Page 3

cutoff allowed by DPS laboratory policy. The State called the forensic scientist to testify

as an expert at Appellant’s trial. The defense filed a motion in limine, requesting that the

trial court hold a hearing to determine the relevance and reliability of the expert testimony

offered by the State. The trial court held a Daubert/Kelly hearing to determine if the

expert testimony was admissible. See Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993); Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). At the

hearing, the expert testified that Appellant’s blood contained cocaine at the time of the

traffic accident. However, she stated that she did not include the cocaine in her

toxicology report because the trace level was below DPS’s reportable cutoff point. The

trial court found the expert’s testimony to be “reliable and relevant” and overruled the

defense objection.

At trial, the expert testified before the jury that she saw trace amounts of cocaine in

Appellant’s blood that were below the limit that she was allowed to report. The defense

objected to the admission of the written toxicology report and to the expert’s testimony

several times on the basis of relevance, but the trial court overruled the objections and

allowed the expert to continue. The expert stated that the amount of metabolite she

detected was large and was consistent with a large amount of cocaine use or a habitual

use of cocaine. She testified that, due to the short half-life of cocaine and the fact that it

degrades in the blood tube, it was her opinion that Appellant would have had cocaine in

her bloodstream at the time she ran the red light and caused the traffic accident.

Bekendam–Page 4

The jury convicted Appellant of driving while intoxicated and sentenced her to

twenty years’ confinement and ordered her to pay a $10,000 fine.

COURT OF APPEALS

Appellant appealed, arguing that the trial court erred in allowing the expert to

testify that a trace amount of cocaine was present in the blood sample and that Appellant

would have had cocaine in her bloodstream at the time of the collision. Appellant argued

that the expert failed to follow DPS standards and procedures by testifying that she found

trace amounts of cocaine in Appellant’s blood sample, and that the testimony was

unreliable and irrelevant. The court of appeals reviewed the trial court’s decision for an

abuse of discretion. The court of appeals considered the Kelly standards for admissibility

of scientific evidence, focusing on whether the scientific technique was properly applied.

Appellant’s argument was that the expert’s failure to follow DPS policy regarding

reporting trace amounts of cocaine resulted in an unreliable and irrelevant opinion and the

expert did not explain why her failure to follow policy was still reliable methodology or

based on facts that would be relied upon by experts in the field. The court of appeals

disagreed and noted that the tests used to evaluate the blood sample, the EMIT and

GCMS, were the scientific techniques applied by the expert. Bekendam, 398 S.W.3d at

363. Because the screening and confirmation tests are generally accepted in the scientific

and judicial communities, the court of appeals determined that the trial court’s decision to

allow the expert testimony was within the zone of reasonable disagreement. The court of

Bekendam–Page 5

appeals overruled Appellant’s issue and affirmed the trial court’s judgment. Id. at 363-

64.

Writing for the dissent, Justice Walker stated that she would have held that the trial

court abused its discretion in allowing the expert to testify that she saw trace amounts of

cocaine in an amount that fell below the level that is reportable under DPS standards.

The dissent says that there is no distinction in the failure to follow the DPS policy and the

failure to properly apply the GCMS technique at the time of testing. Id. at 367. The

expert followed DPS standards in her written report and did not include the trace amount

of cocaine, but then at trial, she was allowed to testify that the test showed an

unreportable trace amount of cocaine, which she told the jury was proof that Appellant

used cocaine not long before the blood sample was taken. The dissent points out that if a

trace amount is too unreliable to be included in a written report, it is just as unreliable

when presented verbally. Id. The State presented no evidence that GCMS test results of

trace amounts of cocaine below the DPS reportable limit are reliable. Thus, the dissent

says that the evidence should have been excluded and the trial court abused its discretion

by allowing the expert to testify. Id.

Appellant filed a petition for discretionary review raising the following three

grounds for review:

(1) The Court of Appeals committed error by incorrectly applying the law

for admissibility of expert opinion testimony in concluding that the trial

court did not abuse its discretion in allowing the testimony. The ruling

conflicts with the opinion of the Court of Criminal Appeals in the issue in

Bekendam–Page 6

Layton v. State, 280 S.W.3d 235, 241 (Tex. Crim. App. 2009), which states

that the party offering expert testimony must prove that the expert testimony

being offered is reliable and relevant by clear and convincing evidence, and

Gobert v. State, AP-76,345, 2011 WL 5881601 (Tex. Crim. App. Nov. 23,

2011) cert. denied, 133 S.Ct. 103, 184 L.Ed.2d 47 (U.S. 2012); Coble v.

State, 330 S.W.3d 253, 277 (Tex. Crim. App. 2010), holding that expert

testimony is not admissible when the offering party provides no scientific

research or studies to support her idiosyncratic methodology.

The ruling also conflicts with the opinion of the Court of Criminal Appeals

in Leonard v. State, 385 S.W.3d 570, 582 (Tex. Crim. App. 2012), which

holds that T EX.R.E VID. 702 and 703 do not allow inadmissible evidence to

support an expert opinion unless it is reasonably relied upon by experts in

the particular field, and reasonable reliance does not exist if the evidence

would not pass the reliability test of T EX.R.E VID. 702.

(2) The court of appeals has misconstrued a rule of evidence regarding the

admissibility requirements of expert testimony. T EX.R.E VID. 702.

(3) The court of appeals had decided an important question of state law that

has not been, but should be, settled by the Court of Criminal Appeals.

T EX.R.A PP.P. 66.3(b). The question is whether an expert witness,

performing tests under the protocols of the DPS lab, may ignore those

protocols, rely on data in violation of those protocols, and testify to things

expressly prohibited by those protocols when there is no evidence offered to

prove the scientific reliability of such deviation.

We will first consider the State’s sole ground for review, which is that “The Court of

Appeals did not address the preservation of error complained of; therefore, it failed in its

obligation to determine whether this systemic requirement of the appeal was met.”

Arguments on State’s Ground for Review

The State argues that the objection at trial was limited to the relevance of the

expert’s testimony and thus the issue of reliability was not preserved for review. The

State complains that the court of appeals did not address its preservation argument. The

Bekendam–Page 7

State says that Appellant’s complaint before the court of appeals and now before this

Court asserts a different legal theory than that raised at trial, thus the issue was not

preserved.

Appellant argues that her motion in limine included both relevance and reliability.

Appellant points out that counsel discussed reliability with the trial judge during the

gatekeeper hearing and provided the court with a case related to reliability and relevance.

After hearing the evidence, the trial judge ruled that the testimony, including the expert’s

statement regarding a trace amount of cocaine below the reportable amount, was reliable

and relevant. Citing Moraguez v. State, 701 S.W.2d 902 (Tex. Crim. App. 1986),

Appellant argues that, after the trial court ruled that the testimony would be admitted, no

further objection was required to preserve error. Appellant concludes that the testimony

was considered and ruled upon by the trial judge and the error was preserved for appellate

review.

Analysis of State’s Ground for Review

Because preservation of error is a systemic requirement on appeal, a court of

appeals should review preservation of error regardless of whether the issue was raised by

the parties. Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005). Here, the State

did raise the issue in its brief to the court of appeals, and the court of appeals failed to

address the State’s argument that Appellant’s error was not preserved. The proper

remedy is for us to determine whether the issue Appellant raised on appeal was preserved

Bekendam–Page 8

for review.

The purpose of requiring an objection is to give to the trial court or the opposing

party the opportunity to correct the error or remove the basis for the objection. Rule of

Appellate Procedure 33.1 states that:

(a) As a prerequisite to presenting a complaint for appellate review, the

record must show that:

(1) the complaint was made to the trial court by a timely request,

objection, or motion that:

(A) stated 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; and

(B) complied with the requirements of the Texas Rules of

Civil or Criminal Evidence or the Texas Rules of Civil or Appellate

Procedure; and

(2) that the trial court:

(A) ruled on the request, objection, or motion, either expressly

or implicitly; or

(B) refused to rule on the request, objection, or motion, and

the complaining party objected to the refusal.

The complaining party must let the trial judge know what she wants and why she thinks

she is entitled to it, and do so clearly enough for the judge to understand and at a time

when the trial court is in a position to do something about it. Lankston v. State, 827

S.W.2d 907, 909 (Tex. Crim. App. 1992). We are not hyper-technical in examination of

whether error was preserved, but the point of error on appeal must comport with the

objection made at trial.

The issue Appellant presented to the court of appeals was, “Whether the court

erred in allowing the state’s expert witness to testify about and rely on the presence of a

Bekendam–Page 9

trace of cocaine found in the blood sample when the written report failed to include it and

she admitted that she was not supposed to even say that it was present under DPS

protocols. The state failed to show by clear and convincing evidence that consideration

and use of such information was reliable and relevant.”

Although Appellant filed a motion in limine objecting to the admissibility of the

expert testimony, the issue of the trace amount of cocaine was not addressed because the

motion was based on the expert’s written report, which does not mention or identify a

trace amount of cocaine in Appellant’s blood. In the motion in limine, Appellant argued

that evidence of metabolite was irrelevant to whether Appellant was intoxicated or

impaired when she was operating a motor vehicle and also raised the issue of reliability,

stating that:

The State’s expert toxicologist can only “guess” that the presence of the

metabolite caused impairment. Other explanations for the Defendant’s

behavior are just as likely. The expert’s guess can not satisfy the three

criteria to demonstrate reliability expressed in Russeau v. State, 171,

S.W.3d 871 (Tex. Crim. App. 2005), cert. denied, 548 U.S. 926 (2006). An

expert’s opinion is not reliable if it is not grounded “in the methods and

procedures of science” and said opinion is no more than “subjective belief

or unsupported speculation.” E.I. duPont de Nemours and Co., Inc. v.

Robinson, 923 S.W.3d 549, 557 (Tex. 1995) [quoting Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S.579, 590 (1993)]. See also Acevedo v.

State, 255 S.W.3d 162 (Tex. App.–San Antonio 2008, pet. ref’d) and

DeLarue v. State, 102 S.W.3d 388 (Tex. App.–Houston[14th Dist.] 2003,

pet. ref’d). Merely speculative testimony is unreliable and irrelevant.

Acevedo, 255 S.W.3d at 169. Before the State can admit evidence that a

drug was found in a defendant’s blood, the State must show–by reliable and

competent scientific evidence–that a defendant was under the influence of

that drug at the time of the accident. DeLarue, 102 S.W.3d at 400.

Bekendam–Page 10

Appellant also argued that the testimony was not admissible under Rules of Evidence 702

or 703. Under Rule of Evidence 702, the trial court is responsible for determining

whether proffered scientific evidence is sufficiently reliable and relevant to assist the jury.

The trace amount of cocaine was first discussed in the gatekeeper hearing. At the

hearing, the State asked the expert witness about her background and experience and

about whether the tests she conducted were generally accepted by the scientific

community and had been admitted in courts all across the State of Texas and the United

States. The expert testified about the results of the GCMS test and stated that she had

seen a trace amount of cocaine in Appellant’s blood sample but did not list it in her

written report because it is DPS policy to not report an amount below .05. The defense

asked the witness specific questions about how the GCMS test works and how the results

are analyzed. After the testimony, the defense cited Russeau, 171 S.W.3d 871, to the trial

court and said, “It’s the trial court’s responsibility to determine whether proper scientific

evidence is sufficiently reliable and relevant to assist the jury.” The trial court ruled on

the motion, stating, “I find that this witness’s testimony is reliable and relevant. The

defense objection is overruled.”

Although no further objection was required,2 the defense objected based on

2

See Moraguez v. State, stating that “[i]t is well settled that when a pre-trial motion to

suppress evidence is overruled, the defendant need not subsequently object at trial to the same

evidence in order to preserve error on appeal. . . .There can be no question but that appellant

originally preserved his error by obtaining an adverse ruling on his motion to suppress, and he

was not obligated to again object at trial.” 701 S.W.2d at 904 (internal citations omitted).

Bekendam–Page 11

relevance when the witness testified before the jury and the State asked about the results

of her testing. The trial judge overruled the objections.3

While Appellant did not specifically complain that the results of the testing or the

expert testimony about the trace amount of cocaine were unreliable, Appellant’s objection

was not limited to relevance. When dealing with this type of evidence, a relevance

objection raises the question of whether the testimony is sufficiently reliable and thus

relevant to be admitted. As we said in Everitt v. State, 407 S.W.3d 259, 263 (Tex. Crim.

App. 2013), it would be error to distinguish “between admissibility based on relevance

and admissibility based on reliability. Under Rule 702 and our precedent, both relevance

and reliability of the expert testimony are components of a trial court’s Daubert/Kelly

ruling on admissibility.” We additionally stated that the “parsing of appellant’s

objections is the kind of hyper-technical analysis that we have repeatedly rejected.” Id.

Conclusion on State’s Ground for Review

3

STATE: And did your testing also–did you see any trace amounts of cocaine in the

blood that were beneath the reportable levels?

DEFENSE: Objection, relevance, Your Honor.

COURT: Overruled.

WITNESS: I did see trace amounts of cocaine, but it was below my reportable limit that I’m

allowed to report.

STATE: Explain to the jury what your reportable limit is.

WITNESS: .05 is our lowest calibrator so anything less than half of that I can’t even say that I

saw cocaine.

Bekendam–Page 12

While it is true that the court of appeals did not address preservation of error, it is

clear from the record that the issue of reliability was raised, discussed, and ruled upon by

the trial court. The issue was preserved for review, and the court of appeals did not err in

considering the merits of Appellant’s argument on appeal.

Appellant’s First Ground for Review

In her first ground for review, Appellant argues that the court of appeals

incorrectly applied the law for admissibility of expert testimony.

Appellant says that the court of appeals’s ruling conflicts with our holding in

Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009), because the party offering

expert testimony must prove that the testimony is reliable and relevant by clear and

convincing evidence. Appellant says that the State failed to prove by clear and

convincing evidence that the expert’s testimony regarding the trace of cocaine was

reliable and relevant and that the trial court abused its discretion in allowing her to testify

about the trace and to rely on it in formulating her opinions. Layton, however, is

distinguishable from the case before us in that the State in Layton failed to present an

expert witness to testify regarding what, if any, effect prescription drugs that were taken

more than 12 hours before the appellant’s arrest might have when combined with alcohol,

and thus the State failed to establish that the ingestion of the medications was relevant to

intoxication. We stated:

There is no evidence as to the dosage taken by Appellant, the exact times of

ingestion, or the half-life of the drug in the human body. Considering the

Bekendam–Page 13

length of time between the ingestion of the medication and the time of

arrest, a lay juror is not in a position to determine whether Xanax and

Valium, taken more than 12 hours before arrest, would have any effect on

Appellant’s intoxication.

Id. at 241-42. Here, the State did present expert testimony related to the amount of the

drug detected in the blood and the half-life of the drug in the human body, from which the

expert was able to determine the time of ingestion. The expert here also testified to how

the drug was metabolized and the effect the drug would have on the central nervous

system. Unlike in Layton, the evidence related to the cocaine in Appellant’s blood

sample was not left to the interpretation of lay jurors.

Appellant next cites Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010) and

Gobert v. State, No. AP-76,345, 2011 Tex. Crim. App. Unpub. LEXIS 891 (Tex. Crim.

App. Nov. 23, 2011), arguing that expert testimony is not admissible when the offering

party provides no scientific research or studies to support idiosyncratic methodology.

In Coble, we held that the trial court had abused its discretion in admitting expert

testimony related to the future-dangerousness special issue. We determined that the State

had not shown the scientific reliability of the evidence by clear and convincing evidence

because the expert used his own methodology, did not perform any assessment or rely on

any tests, cited no standards relied upon by those in his field, and did not know of any

books or articles related to his factors or methodology. Coble, 330 S.W.3d at 277. The

same psychiatrist testified in Gobert, and we again determined that the court erred in

admitting his testimony. We stated that the doctor “provided no scientific, psychiatric, or

Bekendam–Page 14

psychological research or studies to support his idiosyncratic methodology for predicting

whether a hypothetical person would commit future acts of violence.” 2011 Tex. Crim.

App. Unpub. LEXIS 891, at *22. The same is not true here. The expert witness did not

rely on idiosyncratic methodology in her analysis of the blood sample. The expert used

standard laboratory equipment and scientific techniques relied upon by those in her field

to determine the results of the blood test. Her testimony related to the trace amount of

cocaine in Appellant’s blood was based on the result of the GCMS test, which is

generally accepted by the scientific community. Appellant does not dispute the general

reliability of the GCMS to analyze blood samples, but argues that by testifying about the

trace amount of cocaine detected in Appellant’s blood, the expert deviated from DPS

laboratory protocols and thus used idiosyncratic methodology. At trial, Appellant asked

the expert, “You don’t actually see cocaine floating in the blood with some kind of

microscope. Right?” She answered, “We do not use microscopes. No, sir.” However,

Appellant still seems to be arguing that the expert was saying that she actually “saw” or

“visualized” cocaine in the blood sample, rather than that the GCMS test detected an

amount below the reportable cutoff used by the DPS laboratory. Appellant argued in his

brief to the court of appeals that the expert was testifying to her visual observation: “Here

the underlying data was the visual observation claimed by the witness to having seen a

substance that could not be reported by the scientific instrument in the report and that she

was prohibited by DPS protocols from even saying she had seen.” He also states that, “It

Bekendam–Page 15

was only in reliance on the presence of something she claims she saw, but could not be

reported by the advanced instrument used in testing, that she then bootstrapped her way

into forming an opinion that there was cocaine in the defendant’s body at the time of the

collision.” This is not an accurate understanding of the expert’s testimony. The expert

was not relying on her own methods of testing or interpretation–she based her opinion on

the results of a scientifically accepted test that detected even a trace so small that it was

below the minimum required by DPS protocol to be reported as positive. The expert

testifying to an amount that is too small to be included in the report does not equate to

using her own methods of testing or interpretation. The method of testing was the GCMS

and the method of interpreting the results were the same as they would have been if the

amount of cocaine detected by the GCMS had been larger, i.e. her training and experience

in chemistry and her knowledge of the half-life of the drug and how it is metabolized.

Appellant’s argument that the court of appeals’s ruling conflicts with our holding

in Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012), is also without merit. In

Leonard, we concluded that the expert’s testimony was inadmissible because the sole

basis for his opinion was the results of a polygraph test, which have repeatedly been

determined to be unreliable and inadmissible. Here, as stated above, the expert based her

opinion on the generally reliable and admissible results of the GCMS test.

Appellant’s first ground for review is overruled.

Appellant’s Second Ground for Review

Bekendam–Page 16

Appellant argues that the court of appeals misconstrued Rule of Evidence 702.

Rule 702 states 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.” Prior to admitting expert testimony, Rule

of Evidence 705(c) requires the trial court to first determine whether the basis for the

expert’s testimony is reliable, and “[i]f the court determines that the underlying facts or

data do not provide a sufficient basis for the expert’s opinion under Rule 702 or 703, the

opinion is inadmissible.” Id. The reliability of scientific evidence is analyzed using the

three factors enumerated in Kelly: (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. 824 S.W.2d at 573. The admissibility of expert testimony may also be

challenged based on the expert’s qualifications, or if the testimony does not meet the

relevance requirements of Rule 401.4 As we stated in Everitt, “Reliability refers to the

scientific basis for the expert testimony, while relevance refers to the ‘fit’ of the scientific

principles to the evidence at hand.” 407 S.W.3d at 263. Thus, the question of reliability

here relates to whether there was sufficient scientific basis for the expert to testify about

an amount of cocaine below the DPS reportable cutoff, and the question of relevance

4

Rule of Evidence 401 states that, “‘Relevant evidence’ means evidence having any

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.”

Bekendam–Page 17

relates to whether the expert’s testimony would assist the jury in understanding the

evidence and in making a factual determination.

Appellant argues that the expert’s testimony was inherently unreliable and thus

irrelevant. She says that, under the third Kelly factor, the technique applying the scientific

theory was not properly applied because DPS procedure specifies that laboratory reports

are not to include positive results that are below a threshold level. She says that the trace

of cocaine was inadmissible because reporting it was a deviation from DPS laboratory

protocols and, because the trace of cocaine is inadmissible and was the sole basis for the

expert’s opinion, the expert’s testimony is inadmissible.

We agree with Appellant that Somers v. State, 368 S.W.3d 528 (Tex. Crim. App.

2012), is not on point and should not be relied upon in this case. In Somers, we

considered the admissibility of a positive EMIT test when the GCMS results showed only

a trace of cocaine. We stated, “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.” Id. at 544. Although we were not dealing with the reliability

of GCMS results that are below the DPS reportable cutoff, Somers implies that even if a

GCMS test for cocaine is reported as negative, the test may still have detected trace

amounts of cocaine in the blood.

Bekendam–Page 18

The GCMS used in this case was a validated and calibrated instrument, the test

was performed by a trained expert, and the results of GCMS tests are widely accepted in

the scientific community. These results formed the scientific basis for the expert’s

testimony and they are sufficiently reliable. The expert testimony presented in this case

also meets the relevance requirements in that the testimony assisted the factfinder in

understanding the evidence and in determining whether Appellant had cocaine in her

system at the time of the collision.

Appellant’s second ground for review is overruled.

Appellant’s Third Ground for Review

In her final ground for review, Appellant asks whether an expert witness who

performed tests under the protocols of the DPS lab can ignore those protocols, rely on

data in violation of those protocols, and testify to things prohibited by those protocols

when there is no evidence offered to prove the scientific reliability of deviating from the

protocols. First, we note that the expert followed DPS-laboratory testing protocols and

followed the reporting protocols in her written report. If there is a DPS policy prohibiting

an expert from testifying at trial to something that was outside the scope of the written

report, such policy was never raised or addressed. Even the DPS policy for reportable

cutoffs that was mentioned by the expert witness was not questioned by either party in the

gatekeeper hearing or at trial and was not cited or discussed in the briefs to the court of

appeals or this court. Thus, any issues related to the actual DPS policy were not raised.

Bekendam–Page 19

Although rate of error is one of the factors that a trial court can consider in

determining reliability under Kelly, Appellant never stated that the test results showing a

trace amount of cocaine could be due to a margin of error. Appellant also did not

question the DPS policy or the reasoning behind having a reportable cutoff level for trace

evidence. No evidence or arguments were presented at any point in this case about why

the DPS laboratory has the internal policy of .05 cutoff for reporting or if such a policy is

used in other agencies.

The court of appeals was correct that the technique applying the scientific theory

was related to the GCMS results, which were determined to be reliable and relevant. DPS

policy or reporting protocol is not the technique applying scientific theory. The court of

appeals was also correct that the issue raised by Appellant was related to the reliability of

the tests conducted, the methodology used, and the underlying data. The issue is not the

reliability of the DPS laboratory protocol or standards–it is the reliability of the GCMS.

Finally, the court of appeals was correct that, despite Appellant’s argument regarding

visual observation of the trace amount of cocaine, the expert’s testimony was based on

her analysis of the GCMS results.

Here, the expert witness performed the GCMS tests under the protocols of the DPS

laboratory. There is no evidence that she ignored or deviated from the testing or reporting

protocols or relied on data in violation of those protocols. While she did testify to

information that was outside the scope of the written report, there was no evidence

Bekendam–Page 20

offered that such testimony violated DPS policy. It was also not shown that the expert

testifying to something that was outside the scope of the written report rendered the

results of the GCMS scientifically unreliable.

CONCLUSION

The issue of the reliability of the expert’s testimony was preserved for review and

the court of appeals did not err in reaching the merits of Appellant’s argument. The court

of appeals properly applied the Rules of Evidence and the law regarding the admissibility

of expert testimony. We agree with the court of appeals that the trial court did not err in

admitting the expert’s testimony, and we affirm the decision of the court of appeals.

Delivered: September 17, 2014

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