Dissenting opinion issued August 29, 2013




                                   In The
                            Court of Appeals
                                  For The
                        First District of Texas
                          ————————————
                            NO. 01-11-00715-CV
                          ———————————
                   IN THE MATTER OF Z.R., A CHILD



               On Appeal from the County Court at Law No. 2
                         Fort Bend County, Texas
                   Trial Court Case No. 10-CJV-015951



                        DISSENTING OPINION

      Because the student in possession of whatever the green substance in

his bookbag’s pencil case was maintained it to be a then-legal synthetic form

of pot, the efficacy of the in-court ‘test’ conducted by a (presumably)

uniformed peace officer before the jury, and the testimony of that officer and
other peace officers as to the results and meaning of the tests before the jury

were accorded a heightened import. The majority concludes that any error in

admitting Officers Dale’s and Phillips’s testimony regarding the significance of

presumptive test results and permitting Officer Phillips’s in-court demonstration of

a presumptive test was harmless and does not warrant reversal. Because I believe

the trial court clearly erred in both respects, and that such errors were harmful, I

respectfully dissent.

                            In-Court Presumptive Test

      Rule 702 provides that “[i]f scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine a

fact issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify thereto in the form of an opinion or otherwise.”

TEX. R. EVID. 702. The Court of Criminal Appeals has held that “[p]ursuant to

Rule 702, it is the responsibility of the trial court to determine whether the

scientific evidence offered is sufficiently reliable, as well as relevant, to help the

jury in reaching accurate results.” Layton v. State, 280 S.W.3d 235, 241 (Tex.

Crim. App. 2009). “Reliability of scientific evidence requires a certain technical

showing and depends on whether the evidence has a basis in sound scientific

methodology.” Id. To that end, “[t]he proponent of scientific evidence bears the

burden of proving to the trial court, by clear and convincing evidence, that the

                                          2
evidence is sufficiently relevant and reliable to assist the jury in determining a fact

in issue.” Sexton v. State, 93 S.W.3d 96, 100 (Tex. Crim. App. 2002); Kelly, 824

S.W.2d 568, 573 (Tex. Crim. App. 1992).

      In Kelly, the Court of Criminal Appeals set out three criteria that scientific

evidence must meet to be reliable: “(a) the underlying scientific theory must be

valid; (b) the technique applying the theory must be valid; and (3) the technique

must have been properly applied on the occasion in question.” 824 S.W.2d at 573.

The Court also identified a non-exclusive list of factors that could influence a trial

court’s determination of reliability, including (1) the extent to which the theory

and procedure are accepted as valid by the relevant scientific community; (2) the

technique’s potential rate of error; (3) the availability of experts to test and assess

the method or technique; (4) the clarity and precision with which the underlying

scientific premise and approach can be explained to the court; and (5) the

knowledge and experience of the person(s) who applied the methodology on the

occasion in question. Id.

      Here, the State presented no evidence whatsoever to show the scientific

reliability of the presumptive field test. Nor was any evidence offered as to the

non-exclusive list of factors the trial court could consider in determining the




                                          3
    reliability of the evidence.1 Additionally, Phillips, who was never qualified as an

    expert witness, was permitted to perform the presumptive test in front of the jury,

    prior to which the following exchange took place:

            [Trial counsel]: The point I’m making, Judge, even with the results, it
            still doesn’t mean anything without having some scientific testimony
            to show its reliability.

            [The Court]: And you can cross-examine this witness on that. We
            already have a running stipulation that he’s not going to be qualified
            under 702. You opened the door. He’s going to be allowed to test it,
            if [the State] wants to test it, and then you can cross-examine him on
            the reliability if he knows. He’s an opinion witness only.

            It is undisputed that Officer Phillips was not qualified as an expert witness to

    perform the in-court demonstration, and that the State failed to prove by clear and

    convincing evidence that the presumptive test was sufficiently reliable to assist the

    jury.    See Layton, 280 S.W.2d at 240 (noting that it is trial court’s duty to

    determine whether scientific evidence offered is sufficiently reliable before it is

    presented to jury). Therefore, allowing Phillips’s in-court demonstration of the

    test before the jury was an abuse of discretion.

                                      Officers’ Testimony

            Officer Phillips testified at length regarding the procedure used to perform a

presumptive test for marijuana, the physical results of the test, and what the test


1
            All three officers testified that they did not know the presumptive test’s potential
            rate of error.

                                                 4
results mean, both in general terms and specifically in regard to Z.R. He testified

that a red or blue color indicates the presence of marijuana and that the

presumptive test he performed on the green substance obtained from Aguilar, the

school’s security officer, turned blue.        Following his in-court demonstration,

Phillips testified that because the liquid had turned blue, the substance was

marijuana. Officer Dale testified that a substance turns red in the presumptive test

if it is marijuana and brown if it is synthetic marijuana.

       In Smith v. State, 874 S.W.2d 720 (Tex. App.—Houston [1st Dist.] 1994,

pet. ref’d), this Court addressed the admissibility of a police officer’s testimony

about the performance and results of a field test. Convicted of possession of less

than twenty-eight grams of cocaine, Smith argued on appeal that the trial court had

erred in permitting the police officer to testify that the results of the field test he

performed revealed the presence of cocaine. See id. at 721. At trial, the officer

testified,


       The swabs are removed from the package, and they’re—you run
       alcohol over them, make sure that there is no foreign substance on
       them—the cotton. And then, you place the swab in the crack pipe, or
       whatever you’re testing. And if it turns blue, there’s presence of
       cocaine, which is what happened here. Id.

       The Smith court held that such testimony about the performance and results

of a field test was expert testimony and, thus, the officer could not testify that the

substance was cocaine. See id. However, the court also concluded that the officer
                                           5
could testify about the procedure he used in performing the field test, and about the

physical results of the test. See id. (“Thus, although we give no probative value to

[the officer’s] conclusion that because the cotton turned blue, cocaine was present,

we do assign value to the remainder of his testimony.”).

      Here, Officer Phillips’s testimony about the procedure he used in performing

the original field test was likewise admissible. However, Officer Dale’s testimony

that a substance will turn red if it is marijuana, and Officer Phillips’s conclusion

that because the results of the original presumptive test and the in-court test turned

blue, that marijuana was present, was expert testimony and therefore inadmissible.

                                  Harm Analysis

      A violation of an evidentiary rule that results in the erroneous admission of

evidence is non-constitutional error. Johnson v. State, 967 S.W.2d 410, 417 (Tex.

Crim. App. 1998); Delane v. State, 369 S.W.3d 412, 423 (Tex. App.—Houston

[1st Dist.] 2012, pet. ref’d). In considering non-constitutional error, an appellate

court must disregard error if the court, “after examining the record as a whole, has

fair assurance that the error did not influence the jury, or had but a slight effect.”

Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003). Assessment of the

likelihood that the jury’s decision was adversely affected by the error requires us to

consider the entire record, including testimony or physical evidence admitted for

the jury’s consideration, the character of the alleged error, and how it might be

                                          6
considered in connection with other evidence in the case. Motilla v. State, 78

S.W.3d 352, 355 (Tex. Crim. App. 2002).             We may also consider any jury

instruction by the trial court, the State’s theory and any defensive theories, closing

arguments, and voir dire, if material to the claim. Delane, 369 S.W.3d at 423.

      In Smith, we found that the admission of the officer’s testimony regarding

the field test, although error, was harmless because the State had an expert chemist

testify that the substance was cocaine. See Smith, 874 S.W.2d at 722. 2 Here, by

contrast, the State presented no expert witness to testify about the test results. 3


2
      Although they have no precedential value, the following cases support the Smith
      court’s conclusion. See Tovar v. State, No. 07-07-0156-CR, 2009 WL 1066115, at
      *2 (Tex. App.—Amarillo Apr. 21, 2009, pet. ref’d) (mem. op., not designated for
      publication) (concluding that even if admission of non-expert police corporal’s
      testimony that substance appellant possessed was cocaine was error, it was
      rendered harmless by expert chemist’s testimony that substance was cocaine);
      Williams v. State, No. 01-02-00405-CR, 2003 WL 203567, at *7 (Tex. App.—
      Houston [1st Dist.] Jan. 30, 2003, pet. ref’d) (mem. op., not designated for
      publication) (any error resulting from police officer’s testimony that field-tested
      crack pipe tested positive for cocaine was harmless in light of expert witness’s
      subsequent testimony identifying substance found in pipe as cocaine); Henderson
      v. State, No. 01-95-00242-CR, 1996 WL 111848, at *4 (Tex. App.—Houston [1st
      Dist.] Mar. 14, 1996, no writ) (not designated for publication) (same).
3
      In Kessler v. State, No, 06-10-00150-CR, 2011 WL 317673, *4 (Tex. App—
      Texarkana Jan. 28, 2011, pet. struck) (mem. op., not designated for publication),
      the court found that error in admitting a police officer’s testimony regarding field
      test results, and his opinion that the drug paraphernalia in the defendant’s
      possession contained methamphetamine, was harmless even in the absence of
      expert testimony. See id. The court based its conclusion on the fact that the
      officer testified, without objection, that the defendant had admitted to him that the
      substance in question was methamphetamine, and that the defendant had been
      charged with possession of drug paraphernalia. See id. Here, however, the trial
      court granted the defense’s motion to suppress Z.R.’s statement to Aguilar that the

                                            7
Also, in contrast to Smith in which the officer ostensibly made a single

inadmissible reference (i.e., because the cotton turned blue, cocaine was present),

Officer Phillips’s testimony repeatedly spoke to the presumptive test results—a

color change indicates the presence of marijuana—both in general terms and

specifically with regard to Z.R. Further, although not qualified as a Rule 702

witness, Officer Phillips gave the in-court demonstration of a presumptive test and

testified yet again that the blue color established that the substance was marijuana.

Bagheri, 119 S.W.3d at 764 (noting “powerful persuasive effect that ‘scientific’

evidence has on the average juror”). In this day and age where film and television

have enormously popularized the use of modern science and technology to solve

crimes, juries are particularly susceptible to forensic-science evidence such as that

presented by the State in this case. 4 Finally, the State invited jury focus upon the

test results of the in-court demonstration several times in its closing argument,

emphasizing that it had proven that the substance was marijuana not only through



      substance in the plastic bag was marijuana, so Z.R.’s admission was not evidence
      considered by the jury.
4
      CSI: Criminal Scene Investigation has been called the most popular television
      show in the world. Juror Expectations for Scientific Evidence in Criminal Cases:
      Perceptions and Reality About the “CSI Effect” Myth, The Honorable Donald E.
      Shelton, 27 T.M. COOLEY L. REV. 1 (2010) (citing BBC News, July 31, 2006,
      http://news.bbc.co.uk/2/hi/entertainment/5231334.stm; CSI Earth’s No. 1 Show,
      N.Y.         POST,         June        17,       2008,        available       at
      http://www.nypost.com/p/entertainment/tv/item_WKDOqHHYXBgcnKFGWy2xa
      P).

                                          8
the officers’ testimony, “but also by a test, a chemical test, you have seen with

your own eyes.” See Bagheri, 119 S.W.3d at 763 (noting reviewing court should

consider whether State emphasized error).

      The majority concludes that any error in permitting the in-court

demonstration and admitting the officers’ testimony regarding the presumptive test

results was harmless because of other evidence, independent of the evidence

related to presumptive test results—namely, Officers Dale’s and Phillips’s

testimony that they can identify marijuana based on its odor and appearance, their

identification of State’s Exhibit 2 as marijuana, and Aguilar’s testimony that he

believed the substance was marijuana. Notwithstanding this evidence, I do not

believe that this Court can say with fair assurance that allowing the unreliable in-

court demonstration and Officer Phillips’s lengthy testimony regarding the

performance and results of a field test in general, of the original field test, and of

the in-court test, coupled with the State’s emphasis on the in-court test results in its

closing argument, did not influence the jury, or had but a slight effect. See

Bagheri, 119 S.W.3d at 763; see also Delane, 369 S.W.3d at 423 (holding because

officer was permitted to provide detailed and extensive testimony regarding

appellant’s prescription medications and their potential effects, and because

testimony was unreliable, error in admitting testimony was not harmless). Indeed,

as it is the very purpose of such demonstrative and testimonial evidence to impact

                                           9
the jury, I cannot see how it would have done otherwise. Because I believe those

errors were harmful, I would reverse the trial court’s judgment. Therefore, I

respectfully dissent.




                                             Jim Sharp
                                             Justice

Panel consists of Justices Keyes, Sharp, and Huddle.




                                        10
