Hartman v. State

KELLER, Judge,

concurring and dissenting on appellant’s petition for discretionary review.

I agree with the majority that Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992) announces the proper test for all scientific evidence. As the majority correctly states, scientific evidence must meet a three-pronged reliability test to be admissible: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Id. at 573 .

I would add, however, that in many instances, prongs (1) and (2) can be decided by appellate courts as matters of law. Absent constitutional concerns, the Legislature can recognize the validity of particular scientific theories and techniques through statutory enactment. Trial and appellate courts would be bound to follow such enactments. Even absent legislative action, however, the validity of a particular scientific theory or technique may be established well enough that parties should not be required to relitigate its admissibility. Indeed, the Supreme Court has recognized that some scientific principles are so well established that they may be subject to judicial notice. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 592 n. 11, 113 S.Ct. 2786 , 2796 n. 11, 125 L.Ed.2d 469 , 482 n. 11 (1993). Even if a scientific theory or technique does not occupy a status deserving of judicial notice, it may nevertheless have been established sufficiently to warrant admissibility as a matter of course. Any disputes about the validity of such theories and techniques may then be litigated in the adversarial setting before the factfinder. Permitting judicial recognition of the validity of a scientific theory or technique would provide guidance to trial courts through the development of precedent. See Villarreal v. State, Keller, J. concurring, 935 S.W.2d 134, 148-49 (Tex.Crim.App.1996). Trial courts should not become constantly embroiled in determining the admissibility of scientific theories and techniques that have already been well established as reliable.

Of course, absent legislative action, until an appellate court announces that a scientific theory or technique has been proven sufficiently reliable to be admissible as a matter of law, parties will have to litigate its admissibility; this is true of any issue of first impression. ViUarreal, Keller, J. concurring, at 147-48. Moreover, the reliability of many scientific theories and techniques may not be sufficiently established that an appellate court can with confidence declare the theory *64 or technique admissible as a matter of law. In such cases, an appellate court should refrain from making such a declaration until such time as scientific knowledge has progressed to enable doing so. Further, even after a particular theory or technique has been declared admissible as a matter of law, parties should be permitted to urge a reexamination of the status of a theory or technique if subsequent developments in the scientific field cast doubt upon its continuing validity.

Finally, unlike the first two prongs of the Kelly test, the third prong — whether the technique has been properly applied on the occasion in question — must necessarily be decided on a case-by-case basis.

With these principles in mind, I turn to the present ease. The Legislature has enacted a statute governing the admissibility of breath alcohol tests. Such tests are admissible so long as they are “performed according to the rules of the Texas Department of Public Safety and by an individual possessing a valid certificate issued by the Texas Department of Public Safety for that purpose.” Texas Revised Statutes, Article 6701Z-5, § 3(b)(Vemon’s Supp.1993). The Legislature has statutorily dispensed with any need to analyze the validity of the theory and technique behind the intoxilizer. The only open issue for the trial court to address is whether a test in a particular case satisfies the statutory requirements, i.e. the third prong of Kelly — whether the technique was properly applied on the occasion in question.

But the statute does not address the reliability of techniques for interpreting or extrapolating intoxilizer results, and I would remand for the Court of Appeals to make a determination in the first instance. That court should analyze the various theories and techniques in dispute and determine whether some or all may be declared sufficiently well established as reliable to be admissible as a matter of law. If the court refrains from making such a declaration with regard to a particular theory or technique, then it should determine whether the trial court abused its discretion in determining the theory or technique to be reliable under the facts presented. Finally, even when a theory or technique is determined to be reliable, the Court of Appeals should determine whether the trial court abused its discretion in determining that the technique was correctly applied on the occasion in question.

I would remand the ease to the Court of Appeals to reconsider the admissibility of the evidence in light of the comments made in this opinion.

McCORMICK, P.J., joins.