          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                      NO. PD-0056-11



                              AARON SOMERS, Appellant

                                              v.

                                 THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE TENTH COURT OF APPEALS
                         BRAZOS COUNTY

              M EYERS, J., filed a dissenting opinion.

                           DISSENTING OPINION

       I agree with the majority that EMIT tests are reliable without a confirmation test,

but do not believe that the analysis was necessary in this case. Here, there was no

evidence that the victim, Michelle Briggs, died of a heart attack. The trial court was

within its discretion to exclude the EMIT test results because the relevance of the results

is questionable. What the Appellant is attempting to do is show that the cocaine test

indicates that the victim died of a heart attack. At best, the test could only show that the
                                                                        Somers Dissent - Page 2

cocaine may have caused a heart attack. But there is absolutely no evidence in the record

reflecting that the victim suffered a heart attack before the collision. Allowing the

evidence would be like admitting ballistic test results when the facts indicate that the

victim was stabbed to death. Thus, the trial court did not abuse its discretion.

       The majority should have conducted a harm analysis. As Presiding Judge Keller

stated in Cain v. State: “Except for certain federal constitutional errors labeled by the

United States Supreme Court as ‘structural,’ no error, whether it relates to jurisdiction,

voluntariness of a plea, or any other mandatory requirement, is categorically immune to a

harmless error analysis.” 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). The majority

failed to consider the harm caused by the exclusion of the test results.

       Even if the Court deems the EMIT test to be relevant here, the error was harmless.

Although the results of EMIT tests may be admissible without a confirmation test, the

evidence here did not indicate that the victim died of a heart attack. It is unlikely that a

harm analysis would show that Appellant was harmed by the exclusion of the EMIT test.

Therefore, I would affirm the holding of the court of appeals.




                                                   Meyers, J.

Filed: June 6, 2012

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