# Emerson v. State

> Court of Criminal Appeals of Texas · April 13, 1994 · 880 S.W.2d 759

URL: https://www.frixlaw.com/law-library/cases/9764998

## Case

- **Full name:** Sharon Lee EMERSON, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 13, 1994
- **Citations:** 880 S.W.2d 759; 1994 Tex. Crim. App. LEXIS 48; 1994 WL 122847
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** Baird, Campbell, Clinton, Miller, Overstreet
- **Cited by:** 383 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9764998

## How later opinions describe it (automated extraction)

- finding that prior to admission of HGN evidence with only testimony from arresting officer as foundation, Texas police officers must be certified by completing an NHTSA-approved forty hour training course on HGN, in which the officer evaluates and documents thirty-five HGN tes…
- stating that a witness may testify regarding a defendant=s performance on the horizontal gaze nystagmus test if the witness is qualified as an expert in the administration and technique of the test
- holding that officers’ certification in HGN testing based on 40-hour course consisting of 24 hours of classroom instruction and 16 additional hours of field evaluations qualified him as an expert
- holding court is authorized to take judicial notice of scientific and legislative facts necessary to decide the reliability of the horizontal gaze nystagmus test to determine admissibility of expert testimony regarding the test results

## Opinion text

CLINTON, Judge,
dissenting.
Today the majority takes judicial notice that evidence of the results of the horizontal gaze nystagmus (HGN) test meets the criteria of Kelly v. State, 824 S.W.2d 568 (Tex.Cr.App.1992), governing admissibility of scientific or specialized evidence under Tex.R.Cr. Evid., Rule 702, and is thus admissible in a prosecution for driving while intoxicated. From what the majority says it may well be that, when the time comes, we should hold that HGN evidence is admissible. By reaching that question in this ease, however, for the first time on petition for discretionary review, the majority has relieved the State, as proponent of the HGN evidence, of its ordinary burden of establishing at trial that evidence it has proffered is relevant in the first instance, under Tex.R.Cr.Evid., Rules 401 and 402. I therefore dissent.
As a preliminary matter, I must point out that the majority misconstrues the court of appeals’ holding in this cause. The majority believes that holding to be that Officer Trevino’s testimony as to the administration and results of appellant’s HGN test was admissible as lay opinion evidence. Were that the ease, I would fully endorse the majority’s holding today that HGN testimony is not admissible as lay opinion, but may come in, if at all, only under the criteria announced in Kelly . But by the same token, if the court of appeals did not reach the question whether Trevino’s testimony was admissible under Kelly , I do not see how this Court can reach that question for the first time on petition for discretionary review. This Court reviews “decisions” of the courts of appeals. E.g., Lee v. State, 791 S.W.2d 141 (Tex.Cr.App.1990). At best, if Kelly was raised below as a basis for admissibility but neglected by the court of appeals, we might appropriately remand the cause for that court’s consideration of the issue in the first instance. Otherwise, once it is determined in this Court that the evidence was inadmissible as lay opinion, that should end the matter.
However, I do not understand the court of appeals’ opinion to hold that Officer Trevino’s testimony was admissible as lay opinion testimony. The court of appeals did “note” that a pair of sister courts had disposed of “similar challenges” by holding that HGN testimony may come in as lay opinion. Emerson v. State, 846 S.W.2d 531, at 538 (Tex.App.—Corpus Christi 1993). But the court of appeals here disposed of appellant’s contention “that Trevino did not have the medical background and expertise to testify about what the eye movements meant and what the results might have meant[,]” by holding that the trial court did not abuse its discretion to allow Trevino to testify “as an expert.” Id., at 532 & 533. Thus, although the court of appeals did not cite Kelly , it addressed at least nominally the same issue, viz: what testimony is admissible as expert opinion under Rule 702.
I agree, then, that the issue whether Trevino’s testimony was admissible as expert opinion is properly before us. But I vehemently disagree that we may take judicial notice for the first time on discretionary review of predicate matters that Kelly requires to be established in the trial court before certain kinds of expert testimony may be admissible. In Kelly itself we summarized our holding to be that “under Rule 702 the proponent of novel scientific evidence must prove to the trial court, by clear and convincing evidence and outside the presence of the jury, that the proffered evidence is admissible.” Id., at 573 (emphasis added). Today, it is a majority of this Court that holds for the first time in this cause that the predicate theory that intoxication affects HGN in certain ways is sufficiently well documented that the results of an HGN test can come in under Rule 702. With all due respect, when it comes to novel scientific evidence, unless the predicate theory has been established in the trial court, the trial judge has no basis to conclude the evidence is even relevant, under Rules 401 and 402, much less that it “will assist” the jury under Rule 702. See Kelly v. State, supra, at 574-75 & n. 1 (Clinton, J., concurring). Un *771 der these circumstances he errs to admit the evidence over valid objection. See Tex.R.Cr. Evid., Rule 705(c).
By taking judicial notice of the predicate theory for the first time on discretionary review, the Court reheves the proponent (here, as in Kelly , the State) of what the Court admits is novel scientific evidence of its ordinary burden to establish the relevance, and hence admissibility, of that evidence under Rules 401 and 402, and, perforce, Rule 702. Kelly v. State, supra; Rule 705(c), supra. Cf. Montgomery v. State, 810 S.W.2d 372, at 387 (Tex.Cr.App.1991) (Opinion on rehearing on Court’s own motion) (proponent of evidence must satisfy trial court that extraneous offense evidence has relevance apart from character conformity). In thus relieving the State of an ordinary burden, the Court abandons impartiality and interferes unduly with the adversarial trial process. In short, the Court deprives appellant, at the appellate level, of due process and due course of law!
The Court cites Grice v. State, 142 Tex. Cr.R. 4, 151 S.W.2d 211 (1941), for the proposition that our status as appellate court does not prevent us from taking judicial notice of the theory behind HGN evidence for the first time on discretionary review. I perceive no invasion of the adversarial process in Grice , however, such as that which the majority now invokes Grice to justify.
It is true enough that in Grice the Court took judicial notice of, inter alia, the theory underlying what was at the time fairly novel scientific evidence. Canvassing judicial opinions from this state and a number of other jurisdictions, we judicially noticed that the probability is infinitesimal that any two individuals possess identical fingerprints. But the issue in Grice was not admissibility of fingerprint evidence. Indeed, the Court seemed quite satisfied that a showing had been made by the State’s expert that the underlying theory behind fingerprint identification was sufficiently rehable that such evidence would constitute relevant evidence. Instead, the issue in Grice was whether admittedly relevant fingerprint identification evidence could be, by itself, sufficient evidence to support a jury verdict. In essence, the Court took judicial notice of the conclusiveness of fingerprint identification, at least where the evidence showed nobody but the accused had been in a position to leave fingerprints at the scene of the crime. In deciding this question the Court undoubtedly rehashed much of the same sort of information the jury must have heard from the State’s expert in laying the predicate, at trial, for admissibility. And in fact the Court ultimately opined, in essence, that future trial courts could judicially notice the reliability of the theory underlying fingerprint identification, based upon our own observations in Grice. Id., 151 S.W.2d at 221 . What cannot be said of Grice , however, is that we used principles of judicial notice to relieve the proponent of the novel scientific evidence in that case of the burden to establish the relevance, and hence usefulness, of that evidence in the trial court. Yet that is precisely what the Court does today, on authority of Grice .
The Court also purports to rely upon several evidentiary treatises for the proposition that judicial notice is in fact designed to relieve the offering party of the burden of establishing that a novel scientific theory is a reliable one. It seems clear to me from examining the most pertinent of those treatises, however, that in context it does not contemplate that the offering party should be relieved of this burden in retrospect, at the appellate level. It seems instead to suggest it is appropriate to relieve the offering party of the burden of establishing that the theory behind novel scientific evidence as a matter of judicial notice of an adjudicative fact, in the trial court, as is ordinarily the case under Fed.R.Evid., Rule 201, and our own state analog, Tex.R.Cr.Evid., Rule 201. See P. Gianelli & E. Imwinkelried, Scientific Evidence § 1-2, at pp. 2-6 (1993). This way the parties themselves are permitted the chance to debate the propriety of taking judicial notice of a particular fact; whether, for instance, the source or sources of the information which the proponent wants to be judicially noticed are in fact unimpeachable, or at least sufficiently beyond question as to justify relieving him of his burden. This is not an insignificant question when it comes to novel scientific evidence, as, if nothing else, Kelly *772 should make abundantly clear. Yet appellant has had no opportunity to address this question. Perhaps that is why the majority does not address it either. In fact, by taking judicial notice at this late date, the majority conveniently avoids any of the pesky obstacles characteristic of an ordinary adversarial proceeding, such as input from the party who stands to lose by that action.
I had thought that the principle behind our adversarial system was that by allowing counseled participation by all interested parties, in an adversarial proceeding before a neutral tribunal, we could best achieve both fairness to the litigants and the greatest likelihood of arriving at the truth. Cf. Morrison v. State, 845 S.W.2d 882 (Tex.Cr.App.1992); De Freece v. State, 848 S.W.2d 150 (Tex.Cr.App.1993). In its haste to announce a “right result” vis-a-vis the issue of the admissibility of HGN evidence, the majority cuts off party participation and abandons judicial neutrality, sacrificing fairness for its own unilateral perception of the truth. To this distortion of the adversarial system, as well as our own discretionary review process, I respectfully dissent.
MILLER, J., joins this opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9764998. Public record. Not legal advice.