                                  IN THE
                          TENTH COURT OF APPEALS

                                No. 10-09-00387-CR

AARON ZANE SOMERS,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 272nd District Court
                               Brazos County, Texas
                         Trial Court No. 08-00910-CRF-272


                              DISSENTING OPINION


       I respectfully dissent because I believe the trial court abused its discretion by

excluding the EMIT test results and, as a result, deprived Somers of his due process

right to present a defense.

       The trial court excluded this evidence because it found “no nexus” between the

test results and Michelle Briggs’s death. At the time of the collision, Briggs’s car was

parked slightly on the pavement. A bystander who responded to the accident within

one or two minutes noticed that Briggs had no pulse and her eyes were rolled back in
her head. A medical expert called by the defense testified that it takes about five

minutes after the heart stops for the eyes to do this. And after reviewing the CT scan of

Briggs’s brain, he opined that the scan indicates “anoxic brain injury,” namely, “that the

brain didn’t get enough blood at some point.” This condition is “more commonly

caused by heart conditions” than by blunt force trauma, which the autopsy report

identified as the cause of death. Another medical expert testified that the prolonged use

of amephetamines and cocaine can precipitate heart attacks.

        The EMIT test was conducted about one month after Briggs’s death. It revealed

the possible presence of benzoylecgonine, a metabolite of cocaine. The experts testified

that the EMIT test is a reliable presumptive screening test and that false positives are

very rare. The GC test conducted nearly a year later revealed the presence of a very

small quantity of cocaine in Briggs’s blood. The experts agreed that cocaine degrades

very rapidly so preservatives must be added to blood specimens to ensure the accuracy

of later tests. Here, no preservatives were added to Briggs’s blood specimen.-

        Presiding Judge Keller of the Court of Criminal Appeals has observed that EMIT

test results have been “overwhelmingly accepted as reliable” and their reliability is

“well-recognized.” Hernandez v. State, 116 S.W.3d 26, 42 (Tex. Crim. App. 2003) (Keller,

P.J., concurring) (citing Jones v. United States, 548 A.2d 35, 44-46 (D.C. 1988)). As a

screening test for the presence of cocaine or other controlled substances, the EMIT test is

quite similar to portable breath testing devices and the horizontal gaze nystagmus test,

both of which have been ruled relevant and admissible regarding the presence (but not

the quantity) of alcohol in a defendant’s body on the occasion in question. See Youens v.


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State, 988 S.W.2d 404, 406 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (“an officer

trained in administering the HGN test may give his opinion that a suspect is under the

influence of alcohol, but may not testify to that suspect's exact blood alcohol content”);

Fernandez v. State, 915 S.W.2d 572, 576 (Tex. App.—San Antonio 1996, no pet.) (portable

breath test evidence admissible to establish presence of alcohol but not alcohol

concentration).

        Somers sought to introduce this evidence to support his theory that Briggs died

of a heart attack because of cocaine usage, which could explain why her car was parked

partially on the road at the time of collision. This explanation would also be consistent

with the CT scan. If this was the cause of death, then he would be guilty of only driving

while intoxicated.

        The exclusion of admissible evidence violates a defendant’s right to due process

“if the evidence forms such a vital portion of the case that exclusion effectively

precludes the defendant from presenting a defense.” Potier v. State, 68 S.W.3d 657, 665

(Tex. Crim. App. 2002). “In other words, the erroneous ruling goes to the heart of the

defense.” Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002).

        Here, the trial court excluded this evidence because of the perceived lack of a

causal connection between the evidence and Briggs’s cause of death. In other words,

the court concluded that the evidence is irrelevant. “Rule of Evidence 401 defines

relevant evidence, as ‘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.’” Cameron v. State, 241 S.W.3d 15, 20 (Tex. Crim.


Somers v. State                                                                     Page 3
App. 2007) (emphasis added) (quoting TEX. R. EVID. 401). “Evidence need not by itself

prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides

a small nudge toward proving or disproving some fact of consequence.” Kirsch v. State,

306 S.W.3d 738, 743 (Tex. Crim. App. 2010) (quoting Stewart v. State, 129 S.W.3d 93, 96

(Tex. Crim. App. 2004)).

        Admittedly, Somers was able to present medical testimony suggesting that the

cause of Briggs’s death might have been an earlier heart attack rather than blunt force

trauma, but the exclusion of the EMIT test results precluded him from presenting any

evidence to support his central thesis that Briggs’s died of a heart attack before the

collision because she used cocaine. The exclusion of this evidence surely went to the

heart of his defense. See Kelly v. State, No. 14-09-00166-CR, 2010 Tex. App. LEXIS 4506,

at *20 (Tex. App.—Houston [14th Dist.] June 17, 2010, no pet.); Dietz v. State, 123 S.W.3d

528, 533 (Tex. App.—San Antonio 2003, pet. ref’d); see also Cuadros-Fernandez v. State, 316

S.W.3d 645, 664-65 (Tex. App.—Dallas 2009, no pet.) (exclusion of expert testimony

regarding cause of death violated due process); Stephenson v. State, 226 S.W.3d 622, 628-

29 (Tex. App.—Amarillo 2007, no pet.) (exclusion of expert testimony on reliability of

eyewitness testimony violated due process where complainant’s identification of

defendant was sole evidence of guilt).

        I would reverse the conviction because the exclusion of the EMIT test results

violated Somers’s due process right to present a defense. Because the majority does

otherwise, I respectfully dissent.




Somers v. State                                                                        Page 4
                                                    FELIPE REYNA
                                                    Justice

Dissenting opinion delivered and filed November 24, 2010
Publish




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