Cole v. State

MALONEY, Justice,

concurring.

While I agree with and therefore join the majority opinion, I disagree with the majority’s failure to address the point raised in the State Prosecuting Attorney’s Motion for Rehearing concerning Criminal Rules of Evidence 703 and 705 and ultimately its failure to reach the issue of admissibility of the chemist’s testimony. 1 By failing to ad *814 dress the admissibility of the chemist’s testimony, apart from the admissibility of the reporte, the majority leaves the wrong impression, that at no time may a supervising chemist or any expert testify as to teste conducted by a subordinate.

The State Prosecuting Attorney argues that pursuant to Texas Rules of Criminal Evidence 703 and 705, Thomas could testify as an expert “as to the results of the test[s] in question based upon the chemist’s reports, and then could reveal the findings in those reports as the facte or data underlying his opinion”. The State Prosecuting Attorney concludes that our original opinion failed to “consider the obvious admissibility of the report in issue pursuant to the rules governing expert testimony.” The State Prosecuting Attorney’s contentions disregard the fact that Thomas’ testimony concerning the findings contained in the reports was hearsay and was not offered for the specific purpose of disclosing the underlying basis of his expert opinion pursuant to Rules of Criminal Evidence 703 and 705. If the State had offered Thomas’ testimony concerning the reports pursuant to Rules 703 and 705, it might have been admissible, although the State Prosecuting Attorney goes too far in concluding that the reports would also have been admissible pursuant to the rules on expert testimony.

An expert witness may testify as to matters that will assist the trier of fact in understanding the evidence or determining a fact in issue. Kelly v. State, 824 S.W.2d 568, 572 (Tex.Cr.App.1992); Duckett v. State, 797 S.W.2d 906, 909-10 (Tex.Cr.App.1990); TEX.R.CRIM.EVID. 702. An expert’s opinion may be based upon personal knowledge as well as facte or data presented to the expert during trial or outside of trial. Moreover, the facts or data relied upon by the expert need not be admissible in evidence. TEX.R.CRIM.EVID. 703.

At trial, Thomas testified that he was the supervising chemist at the DPS laboratory in Lubbock. He testified that only two chemists worked in the laboratory. Thomas testified that he had earned bachelor’s degrees in chemistry and biology, had undergone special training at the state DPS headquarters laboratory and had worked as a chemist for the DPS for over seven years. Although Thomas testified that a subordinate chemist in the laboratory examined most of the evidence and prepared the reports, Thomas stated that he, himself, had also examined some of the evidence. Thomas testified as to matters contained in the subject reports, as to the teste run in connection with the reports, the results of those teste, and his conclusions and opinions based upon the results. Thomas also testified about other tests that were run that were not referred to in the subject reports. Appellant objected to Thomas’ testimony concerning the findings contained in the reports as hearsay and as constituting a violation of the confrontation clause. The State did not offer Thomas’ testimony for a specific purpose or as falling within an exception to the hearsay rule. 2 Appellant’s objection was overruled and Thomas was permitted to testify concerning the findings contained in the reports.

It appears that Thomas was qualified as an expert, based upon his education and experience as a chemist-toxicologist, to give his opinion about blood, seminal fluid and hair samples taken from the victim and the victim’s clothing immediately following the offense. As an expert, Thomas was permitted to testify as to relevant matters about which he had personal knowledge, TEX.R.CRIM.EVID. 402, 602, 703, and to state his opinion based upon his personal knowledge of the facte and the evidence, TEX.R.CRIM.EVID. 703. Thomas was also authorized to rely on facts or data contained in the subject reports, including the test results, in forming his own opinion as to the evidence examined, regardless of the admissibility of such facte or data. 3 *815 Reardon, 806 F.2d at 42; TEX.R.CRIM. EVID. 703. However, disclosure of the facts and data underlying an expert’s opinion is another issue.

The party offering expert testimony must be able to establish a sufficient underlying basis for the expert’s opinion or the opinion is inadmissible. 4 Texas Rule of Criminal Evidence 705 provides that an expert may disclose on direct examination or may be required to disclose on cross-examination facts or data underlying his opinion. TEX.R.CRIM.EVID. 705(a). Subparagraph (d) of Rule 705, which has no federal counterpart, provides, however, that facts or data which would otherwise be inadmissible shall be excluded if the court determines that “the danger that they will be used for an improper purpose outweighs their value as explanation or support for the expert’s opinion.” 5 TEX.R.CRIM.EVID. 705(d). One of the greatest dangers in allowing otherwise inadmissible evidence under Rule 705 is that the jury will consider the facts and data as substantive evidence rather than as merely constituting the underlying basis for the expert’s opinion. For that reason it is crucial that the trial court have the opportunity to conduct the balancing test prescribed by Rule 705(d) and that a limiting instruction be given upon request. Therefore, I would hold that when otherwise inadmissible evidence is offered for the purpose of disclosing the basis of an expert’s opinion pursuant to Rule of Criminal Evidence 705, the party offering the evidence must inform the court of the limited purpose for which the evidence is offered so that the court can conduct the required balancing test.

Here, the reports were offered by the State to prove the truth of the matters asserted therein, but as admissible under a hearsay exception. It appears that Thomas’ testimony concerning the findings contained in the reports was also offered to prove the truth of those findings. Since the State did not inform the trial court that the testimony was offered for the specific limited purpose of disclosing the basis of Thomas’ expert opinion, the trial court did not have the opportunity to conduct the required subsection (d) balancing test and give a limiting instruction, if requested. I would accordingly respond to the State Prosecuting Attorney’s contentions regarding the applicability of Rules of Criminal Evidence 703 and 705 by holding that Thomas’ testimony concerning the findings contained in the reports was not admissible pursuant to Rules 703 and 705, where the evidence was not offered for the limited purpose of disclosing the basis of Thomas’ expert opinion. 6

With these comments, I join the opinion of the majority.

. Contrary to the majority’s opinion, I believe the issue of the chemist’s testimony is properly before this Court. At trial, appellant objected to admissibility of both the subject reports and the supervising chemist’s testimony as to findings set forth in the subject reports. The holding of the Court of Appeals was primarily framed in terms of admissibility of the testimony. In his petition for discretionary review on original submission, appellant did not clearly differentiate between admissibility of the report and admissibility of the testimony, but claimed that "the trial court erred in admitting hearsay evidence concerning the results of chemical tests performed by an absent Department of Public Safety chemist". I believe that the holding in our original opinion and in the majority’s opin *814 ion on rehearing are unduly limited to the admissibility of the reports and fail to address admissibility of the chemist’s testimony, although that issue was adequately preserved for appeal.

. Shortly before Thomas testified concerning findings contained in the reports, the State offered the reports into evidence expressly under the business records exception to the hearsay rule. Appellant objected to admission of the reports as hearsay and failing to fall within the business records or the public records exceptions to the hearsay rule.

. As stated by the Second Circuit in concluding that a supervising chemist could testify about the results of tests conducted by a subordinate chemist in the toxicology laboratory of the Connecticut Department of Health:

It is rare indeed that an expert can give an opinion without relying to some extent upon *815 information furnished him by others. Moreover, "[i]t is quite reasonable for a chemist to review another chemist’s analysis when forming an opinion as to the veracity of the latter’s test results.”

Reardon, 806 F.2d at 42 (citations omitted).

. Texas Rule of Criminal Evidence 705(c)'pro-vides:

If the court determines that the expert does not have a sufficient basis for his opinion, the opinion is inadmissible unless the party offering the testimony first establishes sufficient underlying facts or data.

. Rule 705(d) provides:

When the underlying facts or data would be inadmissible in evidence for any purpose other than to explain or support the expert’s opinion or inference, the court shall exclude the underlying facts or data if the danger that they will be used for sin improper purpose outweighs their value as explanation or support for the expert’s opinion. If the facts or data are disclosed before the jury, a limiting instruction by the court shall be given upon request.

TEX.R.CRIM.EVID. 705(d).

.With respect to the State’s clsums that the reports were admissible pursuant to Rule 705, I note that Rule 705 is applicable to the admissibility of "facts or data" underlying an expert’s opinion, not admissibility of physical evidence constituting or documents setting forth such facts or data. Contrary to the State’s assertions, therefore, Rule 705 does not permit the admissibility of the reports themselves, but merely permits disclosure of facts or data contained therein, provided they satisfy the balancing test set forth in subsection (d).