                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-10-00444-CR


Stephanie Lynn Bekendam                   §   From the 30th District Court

                                          §   of Wichita County (50,166-A)
                                          §
v.                                            March 21, 2013
                                          §
                                              Opinion by Justice Meier
                                          §   Dissent by Justice Walker

The State of Texas                        §   (en banc) (p)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS



                                       By_________________________________
                                         Justice Bill Meier
                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-10-00444-CR


STEPHANIE LYNN BEKENDAM                                                 APPELLANT

                                          V.

THE STATE OF TEXAS                                                            STATE


                                       ----------

            FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

                                       ----------

                                     OPINION

                                       ----------

                                  I. INTRODUCTION

      Appellant Stephanie Lynn Bekendam appeals her conviction for driving

while intoxicated, felony repetition.1 In one issue, Bekendam contends that the

trial court erred by allowing the State’s expert to testify to trace levels of cocaine

that the expert found when analyzing a sample of Bekendam’s blood. We will

affirm.
      1
          See Tex. Penal Code Ann. § 49.09(b) (West Supp. 2012).
                                 II. BACKGROUND

      The underlying facts of this case are largely undisputed.         The record

demonstrates that on February 28, 2008, a witness saw Bekendam driving

erratically, colliding her SUV into parked vehicles, and jumping curbs. Bekendam

eventually ran a red light and struck another vehicle, injuring its driver and

passenger. Emergency medics took Bekendam, the driver of the other vehicle,

and its passenger to the hospital. While at the hospital, because an EMT and an

attending nurse reported that Bekendam’s breath smelled of alcohol, the police

procured a sample of Bekendam’s blood.

      After the blood was tested and determined to contain no alcohol, the State

ordered the blood tested for any controlled substances or dangerous drugs.

Bekendam does not contest that she operated a motor vehicle in a public place,

nor does she contest that she had previously been convicted of two prior charges

of driving while intoxicated (DWI). The dispute in this case is whether the trial

court erred by allowing the State’s expert witness to testify to having found trace

levels of cocaine in Bekendam’s blood that, according to the State’s expert,

demonstrates that Bekendam had cocaine in her system both at the time of the

blood draw and at the time she ran the red light. Prior to expert testimony at trial,

the trial court conducted a Daubert/Kelly hearing2 outside the presence of the jury



      2
        See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S. Ct. 2786 (1993); Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).


                                         2
to determine whether it would allow the expert to testify to what she had found

when analyzing Bekendam’s blood.

      At the hearing, Renee Hawkins, the State’s expert witness who analyzed

Bekendam’s blood sample, testified that she is a forensic scientist with the Texas

Department of Public Safety Crime Laboratory’s toxicology section. She testified

that she is trained in the analysis of biological specimens for alcohol and drugs.

She is a member of the Southwestern Association of Toxicologists and of the

International Association of Chemical Testing. Hawkins explained to the trial

court that the department has a procedure in which it first tests blood samples for

several classes of drugs and then, if any of those classes of drugs are detected

and per department policy, a second, additional, confirmation test is conducted to

confirm the type of drug and the amount of that drug contained in the sample.

Hawkins said that both of these tests are generally accepted within the scientific

community and that the results of these tests had been admitted in evidence by

courts throughout Texas and the United States. Hawkins testified that she tested

Bekendam’s blood sample.       According to Hawkins, Bekendam’s blood tested

positive for cocaine3 using the first test, “enzyme-multiplied immunoassay


      3
       The use of the terms “benzoylecgonine,” “the class of cocaine and
cocaine metabolites,” and “cocaine” are routinely described in caselaw, and by
the expert testimony found in those cases, as interchangeable terms when
discussing EMIT test results for the drug cocaine. See, e.g., Matter of Gordon v.
Brown, 84 N.Y.2d 574, 577, 644 N.E.2d 1305, 1306 (N.Y. 1994). Indeed, in
Somers, both the court of appeals and the court of criminal appeals refer to the
results of EMIT as a positive test result for cocaine. Somers v. State, 333
S.W.3d 747, 753 (Tex. App.—Waco 2010) (“As previously discussed, the EMIT

                                        3
technique,” otherwise known as “EMIT.”4 Hawkins said that she confirmed the

results using “the Gas Chromatograph/Mass Spectrometer or [GCMS].”

According to Hawkins, under GCMS, Bekendam’s blood contained traces of both

cocaine and a metabolite, benzoylecgonine, which can only enter the

bloodstream via the consumption of cocaine. After explaining cocaine’s half-life

test was positive for cocaine, but the confirmation [GCMS] test was negative.”),
overruled on other grounds by 368 S.W.3d 528, 530 (Tex. Crim. App. 2012)
(“The [EMIT] results were positive for both cocaine and amphetamines.”). This
language is used by both courts despite their discussions that what is actually
being detected using EMIT is cocaine’s metabolite, benzoylecgonine. Somers,
333 S.W.3d at 751 (“The [EMIT] test was positive for benzoylecgonine, called
cocaine and its metabolites class.”); see also Somers, 368 S.W.3d at 532 (“EMIT
actually tests for the existence of benzoylecgonine, not cocaine.”). But neither
court is being “contrary” to the record in that case. Unlike some classes of drugs
that EMIT screens for, cocaine is in a class of its own. Somers, 368 S.W.3d at
531 (“the [EMIT] results indicated a possible positive for benzoylecgonine, or
‘cocaine and its metabolites’”). For illustration, EMIT also screens for a class of
“amphetamines,” but a positive result in this class does not necessarily indicate
the specific drug ingested. See Martin v. State, 214 Ga. App. 614, 617, 448
S.E.2d 471, 474 (Ga. Ct. App.—1994), cert. denied, (1995) (explaining that after
EMIT results indicated the presence of an “amphetamine-like substance,”
additional testing using GCMS confirmed the presence of methamphetamine).
But a positive result under EMIT in the cocaine and cocaine metabolite class
reveals the drug ingested, cocaine. See Somers, 368 S.W.3d at 532 (“[The
expert] then agreed that EMIT is a reliable presumptive test to determine whether
cocaine has been ingested.”). This is so because as Hawkins testified in this
case, “Benzoylecgonine only comes from cocaine.” In Somers, Hawkins was
also an expert witness. Id. Throughout Somers, when characterizing Hawkins’s
testimony regarding EMIT in general, the court of criminal appeals routinely
refers to the results of EMIT as a positive test for cocaine. Id. When it comes to
cocaine, the limitation in EMIT is not its inability to detect the drug ingested by
the host; an “EMIT test alone [will] not indicate how or when an individual
ingested cocaine, how much was taken, or whether the individual was a habitual
user.” Id. at 532–33. But as we know from Somers, “the results of a [GCMS] test
would not indicate these facts either.” Id.
      4
       See Stedman’s Medical Dictionary 631 (28th ed. 2006).


                                        4
and the level of benzoylecgonine found in Bekendam’s blood sample, Hawkins

testified that there may have been significant amounts of cocaine in Bekendam’s

blood at the time she ran the red light and collided with the other vehicle.

      Hawkins testified that she did not include cocaine as a drug detected in

Bekendam’s blood on her toxicology report because the results under the GCMS

test were “under the .05 [reportable] cutoff point, .05 is our limit for cocaine.”

When asked directly why she would testify that Bekendam’s blood contained

cocaine when her report did not state as such, Hawkins said, “I saw the cocaine,

yes, so I did see the trace levels [of cocaine]. [But] [i]t was below my reportable

cutoff.” At the conclusion of the hearing, the trial court found that Hawkins’s

testimony “is reliable and relevant. The defense objection is overruled. It will be

permitted before the jury.”

      At trial and in the presence of the jury, Hawkins testified that she detected

trace levels of cocaine and cocaine metabolite in Bekendam’s blood sample.

Specifically to the cocaine detected by use of the GCMS test, Hawkins testified

that she saw trace amounts of cocaine in Bekendam’s blood that were “below my

reportable limit that I’m allowed to report.” Hawkins said that the amount of

metabolite she detected in Bekendam’s blood was “one of the larger amounts

that I have reported of [b]enzoylecgonine[,] so it’s consistent with a large amount

of cocaine use or a habitual use of cocaine.” When asked whether Bekendam

had cocaine in her system at the time she ran the red light, Hawkins testified,

“Since I saw cocaine in the sample at trace amounts [at the time the tests were


                                         5
conducted], based on the short half-life of cocaine and the fact that it degrades in

the blood tube, [Bekendam’s cocaine blood level] . . . may have been significantly

higher at the time” Bekendam ran the red light. Hawkins said that it was her

opinion that at the time Bekendam ran the red light, Bekendam would have had

cocaine in her bloodstream.

      The jury returned a verdict of guilty and set Bekendam’s punishment at

twenty years’ confinement and a $10,000 fine. The trial court entered judgment

accordingly. This appeal followed.

                                  III. DISCUSSION

      In her sole issue, Bekendam argues that the trial court erred by allowing

Hawkins to testify (1) that a trace amount of cocaine was present in Bekendam’s

blood at the time of the blood draw and (2) that cocaine would have been in her

bloodstream at the time she was operating her SUV when it collided with the

other vehicle.

      Bekendam’s argument is that Hawkins failed to follow the “standards and

procedures” of the Texas Department of Public Safety (DPS) when she testified

to the amounts of cocaine present in Bekendam’s blood at both of these times.

Bekendam’s argument is predicated on the notion that because DPS requires a

two-step procedure by its forensic scientists when screening blood samples for

drugs, and that under this procedure the department as a policy does not include

in its lab reports any positive test result whenever the second step to that

procedure does not indicate a threshold level of certain drugs, Hawkins’s


                                         6
testimony was “inherently unreliable and therefore irrelevant” when she testified

that she did in fact find trace amounts of cocaine in Bekendam’s blood sample

using both tests. So, Bekendam argues, even though there were trace amounts

of cocaine in her system at the testified-to times, Hawkins should not have been

allowed to testify to the matter because she should have been bound by the

department’s policies for reporting the presence of cocaine.

      We review the trial court’s decision on the qualifications of an expert or the

reliability of her testimony for an abuse of discretion. See Hernandez v. State, 53

S.W.3d 742, 750 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). A trial court

abuses its discretion when its decision lies outside the zone of reasonable

disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). An

expert may testify on scientific, technical, or other specialized subjects if the

testimony would assist the factfinder in understanding the evidence or

determining a fact issue. See Tex. R. Evid. 702. The trial court may exclude

scientific testimony or evidence that is not reliable. See Hernandez, 127 S.W.3d

at 218.

      To be considered reliable, evidence derived from a scientific theory must

satisfy three criteria: (a) the underlying scientific theory must be valid; (b) the

technique applying the theory must be valid; and (c) the technique must have

been properly applied on the occasion in question. Kelly, 824 S.W.2d at 573;

see also Hartman v. State, 946 S.W.2d 60, 62–63 (Tex. Crim. App. 1997)




                                         7
(applying Kelly standard to all scientific evidence, whether novel or not, that is

offered under Tex. R. Evid. 702).

      It is the third criterion, whether the scientific technique in question has

been properly applied, that Bekendam attacks.              Bekendam sets forth the

proposition that the failure to follow DPS’s policy regarding testing blood samples

for illicit drugs is the equivalent of failing to properly apply the scientific technique

on the occasion in question.5 But the equating of the department’s policy with

any given scientific technique is erroneous.        Indeed, within the department’s

policy for drug screening, two specific scientific techniques are utilized. First, as

Hawkins testified, the department utilizes EMIT to determine whether a class of

drugs exists in a given sample. If the EMIT test is positive for a class of drugs,

including cocaine, then the sample is tested under another scientific technique;

namely, the GCMS test. Therefore, contrary to the manner in which Bekendam

would have us approach our analysis, we must determine whether the trial court

      5
        The converse of Bekendam’s position is correct pertaining to breath tests.
That is, in a hearing regarding reliability of scientific evidence in a DWI
prosecution at which the results of a breath test are challenged, all the trial court
need do to satisfy its “gate-keeping” function is to determine whether the
technique was properly applied in accordance with DPS rules on the particular
occasion in question. Bolen v. State, 321 S.W.3d 819, 826–27 (Tex. App.—
Amarillo 2010, pet. ref’d). This is so because the Legislature has already
determined that the underlying science is valid and that the technique applying it
is valid so long as it is administered by individuals certified by and using testing
techniques approved by the DPS. Bolen, 321 S.W.3d at 826. But this rule does
not remove the trial court’s gate-keeping function on expert testimony regarding
techniques not administered in accordance with DPS policy. Nor does this rule
dictate that techniques not administered in accordance with DPS policy are
per se unreliable.


                                           8
abused its discretion by allowing Hawkins to testify to the results that she

ascertained by using the EMIT and GCMS tests.              Hernandez v. State, 116

S.W.3d 26, 27–29 (Tex. Crim. App. 2003).

      In this case, the underlying scientific theory and techniques are not only

accepted as valid by the relevant scientific community, they also have been

accepted by a number of trial courts and reviewing courts as reliable. Id. As

Presiding Judge Keller discussed in her concurring opinion in Hernandez, the

“EMIT system has been overwhelmingly accepted as reliable. The reliability of

[the EMIT] test [as a screen for broad categories of drugs] has been litigated

extensively before fact-finders, with the parties being able to offer live testimony

and to conduct cross-examination.” Hernandez, 116 S.W.3d at 42 (Keller, P.J.,

concurring) (citing Jones v. United States, 548 A.2d 35, 44–46 (D.C. 1988)); see

also Spence v. Farrier, 807 F.2d 753, 756 (8th Cir. 1986) (citing cases and

discussing general acceptance of EMIT test results as relevant evidence).

Following Judge Keller’s concurrence in Hernandez, the court of criminal appeals

recently held that “the reliability of even a single, unconfirmed EMIT test has

been sufficiently established that it meets the first two Kelly prongs.” Somers v.

State, 368 S.W.3d 528, 545 (Tex. Crim. App. 2012). And much like the facts of

this case, the Somers court found it significant that the confirming GCMS test

“did in fact show traces of cocaine . . . but at a level below the minimum required

by DPS protocol to be reported as positive.” Id. at 544.




                                         9
      Similar to EMIT, GCMS has for some time been considered the “Golden

Rule” in the field of toxicology to verify or confirm the results of an EMIT test.

Bolieu v. State, 779 S.W.2d 489, 490 (Tex. App.—Austin 1989, no writ); see also

Combs v. State, 6 S.W.3d 319, 322 (Tex. App.—Houston [14th Dist.] 1999, no

pet.) (“Texas and Federal courts have found the gas chromatography test to be a

reliable method for identifying compounds, and it has been generally accept[ed]

in the scientific community.”).

      Here, the trial court conducted a hearing where the expert testified to her

qualifications; to the utilization of both the screening and the confirmation tests

she utilized; that these tests are generally accepted in the scientific community;

and that testimony concerning these tests has been admitted in courts “across

the State of Texas and the United States.” Given the general acceptance of

these tests within both the scientific and judicial communities, we cannot say that

the trial court’s decision to allow the expert witness to testify to her findings was

outside the zone of reasonable disagreement. Casey, 215 S.W.3d at 879. It was

certainly within the trial court’s discretion to determine that the State’s expert

testimony regarding her analysis of Bekendam’s blood sample would assist the

factfinder in understanding the evidence or in determining the question of

whether Bekendam had cocaine in her system while she operated her SUV

during the time of the incident. See Tex. R. Evid. 702.

      We conclude and hold that the trial court’s determination to allow the

State’s expert to testify to the level of cocaine found in Bekendam’s blood


                                         10
sample—both at the time of the blood draw and at the time of the incident—falls

within the zone of reasonable disagreement, even though Hawkins identified

trace levels of cocaine and cocaine metabolite that were below minimums set by

DPS’s policy. We overrule Bekendam’s sole issue.

                               IV. CONCLUSION

      Having overruled Bekendam’s sole issue on appeal, we affirm the trial

court’s judgment.




                                                BILL MEIER
                                                JUSTICE

PANEL: EN BANC

WALKER, J., filed a dissenting opinion in which DAUPHINOT and GARDNER,
JJ., join.

PUBLISH

DELIVERED: March 21, 2013




                                      11
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00444-CR


STEPHANIE LYNN BEKENDAM                                                APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


                                      ----------

         FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

                                      ----------

                           DISSENTING OPINION

                                      ----------

      I would hold that the trial court abused its discretion by allowing the State’s

expert witness, Renee Hawkins––a forensic scientist with the Texas Department

of Public Safety (DPS) Crime Laboratory, to testify that she “saw” trace amounts

of cocaine in the Gas Chromatograph/Mass Spectrometer (GCMS) test results of

blood drawn from Appellant Stephanie Lynn Bekendam in an amount that fell

below the level that is reportable under DPS standards.
      Hawkins’s written report of her findings from the GCMS testing on

Appellant’s blood, attached to this dissenting opinion as Appendix A, does not

mention or identify any trace amount of cocaine in Appellant’s blood. It states, in

pertinent part,

      Results of Analysis and Interpretation
           Blood Drugs: Benzoylecgonine (a cocaine metabolite) (1.4
           milligrams per liter)

At the gatekeeping hearing, however, Hawkins testified that the GCMS results

showed not only the cocaine metabolite Benzoylecgonine in Appellant’s blood—

in accordance with her written report—but also trace amounts of cocaine in

Appellant’s blood.1   Hawkins testified, in part, that after conducting the initial

EMIT screening test, she conducted a confirmatory GCMS test:

            Q. Okay. Now, did you also see any trace amounts of
      cocaine in the sample when you tested it?

             ....

             A. I did see traces of cocaine in the sample, yes.


      1
        Contrary to the Majority Opinion’s assertion, Hawkins never testified that
the EMIT detection test showed cocaine in Appellant’s blood. She repeatedly
testified that the EMIT detection test screened for six classes of drugs, one of
those classes being cocaine and/or its metabolites. Blood triggering a positive
test in one of the EMIT screening classes must be further tested by the GCMS to
determine “which type of analyte [sic], which type of drug, and how much of that
drug.” Thus, while it is undisputed that Appellant’s blood triggered a positive
response on the EMIT test in the cocaine and/or cocaine metabolites class, this
positive result did not show whether the test was positive because of the
presence of cocaine metabolite only or because of the presence of cocaine and
cocaine metabolite, nor did it quantify the amount of cocaine and/or cocaine
metabolite that triggered the positive response.


                                         2
      ....

        Q. And is it true that in about four hours most of the cocaine
in [] someone’s system could be metabolized?

      A. It can be, yes.

       Q. And would it be possible, if you assume a wreck that
occurs at 5:30 in the afternoon and a blood draw isn’t taken until
nearly 7:00 p.m., an hour and a half later, and in that blood draw you
see the results that you saw in this case, and you saw trace amounts
of cocaine, for there to be cocaine in the bloodstream of the driver at
the time of the driving?

      A. Yes. Considering -- considering the half-life of cocaine,
there may have been significant amounts of cocaine in the blood
sample an hour and a half earlier.

      ....

      Q. Now, what exactly is a GCMS? . . . .

       A. We perform an extraction from the blood to extract the
drugs of interest out of the blood. And then the first part of the
instrument separates the compounds of interest or the drugs of
interest, and then the second part of the instrument identifies them
almost like a fingerprint for that drug.

      ....

      Q. After you’ve done the extraction and you put the sample in
the GCMS, at that time is that when you get the test results that’s the
basis of your report?

      A. Yes.

      Q. Or is something -- is there another step?

      A. Well, we perform the data analysis.

      Q. What is the data analysis?




                                  3
      A. The instrument will give me the data for all my controls and
my samples. I will do the dialysis on my controls, have that peer
reviewed by another coworker, and then I will analyze each case
sample individually and provide a result and write my report.

      Q. So there’s like a computer screen that tells you what’s in
the sample?

       A. There is software for us to look at that separation and that
fingerprint that I was speaking of.

      Q. And is that where you saw the cocaine metabolite?

      A. Yes.

     Q. It shows up as a certain bar graph or something on the
computer?

        A. It does. It shows the peak separation so I can see the drug
itself separated, and then it will show the spectrum or what I was
referring to that’s similar to a fingerprint. And then it -- the software
will be used with our calibration to create a concentration.

       Q. Now, when you said you saw cocaine or trace of cocaine,
it was under the .1 milligrams per liter?

      A. It was under the .05 is our cutoff point. .05 is our limit for
cocaine.

      ....

      Q. So based on your test report, are you able to testify with
any kind of reasonable medical certainty that the driver from whom
the sample was drawn was impaired at the time of the accident?

     A.      I can only say that cocaine may impair an individual
person.

      ....

      Q. And that impairment could depend on a number of factors.
Correct?



                                   4
             A. Yes.

            Q. Number of factors that you don’t know specifically about
      this Defendant?

             A. Correct.

            Q. You don’t know . . . whether Stephanie last used drugs
      one hour before the accident, one day before the accident, three
      days before the accident?

            A. If I had only seen Benzoylecgonine, I may not have known
      that. But since I saw trace levels of cocaine, I know that it was not
      long before the time of incident, the time of blood draw, excuse me.

             Q. But trace levels of cocaine don’t show up in your testing.

            A. I saw the cocaine, yes, so I did see the trace levels. It was
      below my reportable cutoff.

Hawkins later testified in front of the jury, in part, as follows:

           Q. And what were the results of your testing on this
      Defendant’s blood?

             ....

            A. My results were 1.4 milligrams per liter of Benzoylecgonine
      which is a cocaine metabolite.

            Q. [] All right. And did your testing also -- did you see any
      trace amounts of cocaine in the blood that were beneath the
      reportable levels?

             ....

            A. I did see trace amounts of cocaine, but it was below my
      reportable limit that I’m allowed to report.

             Q. [] Explain to the jury what your reportable limit is.

              A. .05 is our lowest calibrator so anything less than half of
      that I can’t even say that I saw cocaine.


                                            5
      Q. All right. Now, explain to the jury what Benzoylecgonine
is.

      A. It’s a metabolite of cocaine. Cocaine breaks down -- in
order to use a drug, your body will break something down or
eliminate it and then it metabolizes.

      ....

      Q. All right. Does -- Benzoylecgonine, that’s what is
considered an inactive metabolite; is that correct?

      A. It is. It is not active on your central nervous system like
cocaine is.

       Q. So cocaine would be a substance that would or could
impair your central nervous system, but the metabolite would not; is
that correct?

      A. Correct.

      Q. All right. Does Benzoylecgonine stay in the system longer
than cocaine?

      A. It does.

      ....

       Q. And does the fact that you saw trace amounts of cocaine
in the Defendant’s blood sample, what’s the significance of that?

       A. The fact that I saw cocaine in the sample and the fact that
it metabolizes very quickly means that it may have been significantly
higher at the time of the incident.

      Q. Does that also mean that the use of the cocaine was
closer in time to the time of driving versus being a couple of days
beforehand?

      A. Yes.




                                 6
      Scientific evidence has the ability to mislead a jury that is not properly

equipped to judge the probative force of the evidence. Layton v. State, 280

S.W.3d 235, 241 (Tex. Crim. App. 2009).          The trial court is responsible for

determining whether the scientific evidence offered is sufficiently reliable, as well

as relevant, to help the jury in reaching accurate results. Id. The proponent of

scientific evidence bears the burden of proving to the trial court, by clear and

convincing evidence, that the evidence is sufficiently relevant and reliable to

assist the jury in determining a fact in issue.     Id.   Evidence derived from a

scientific theory must meet three criteria in order to be reliable in any given case:

“‘(a) the underlying scientific theory must be valid; (b) the technique applying the

theory must be valid; and ([c]) the technique must have been properly applied on

the occasion in question.’” Id. (quoting Kelly v. State, 824 S.W.2d 568, 573 (Tex.

Crim. App. 1992)).

      Here, as the majority points out, Appellant’s argument centers around the

third criteria—proper application of the scientific technique on the occasion in

question. The majority espouses that “equating of the department’s policy with

any given scientific technique is erroneous” and then addresses the EMIT and

GCMS testing techniques. Maj. Op. @ 8. Thus, the majority distinguishes the

failure to follow the DPS policy—which prohibits reporting amounts of cocaine

below 0.05mg/L in GCMS testing—from the failure to properly apply the GCMS

testing technique at the time of testing.     But I see no distinction.     Hawkins

properly followed DPS standards in her written report and did not report that the


                                         7
GCMS results showed any cocaine in Appellant’s blood. Hawkins explained that

the DPS prohibited her from reporting that GCMS test results showed cocaine in

Appellant’s blood because “.05 is our lowest calibrator.” Nonetheless at trial,

Hawkins was allowed to testify that the GCMS results showed unreportable trace

amounts of cocaine in Appellant’s blood that were below .05 mg/L and that

because cocaine, not just cocaine metabolite, was in Appellant’s blood, this

proved Appellant used cocaine not long before the blood draw.

      If GCMS analysis shows a trace amount of cocaine that is unreportable in

a written report by a forensic scientist with the DPS Crime Laboratory per DPS

policy because the amount of cocaine is under the lowest calibrated level, how

can that amount of cocaine be reportable in verbal testimony at trial by a forensic

scientist with the DPS Crime Laboratory when it is still under the lowest

calibrated level? If a trace amount of cocaine is too unreliable to be included in a

written report, why is it reliable if presented orally? Hawkins’s testimony about

the trace amount of cocaine was unreliable because it showed that, per DPS

policy, application of the technique––GCMS testing––excluded reporting trace

amounts of cocaine that fell below the lowest calibrated level of .05 mg/L. And

the State presented no other evidence or testimony that GCMS test results of

trace amounts of cocaine below the DPS’s reportable limits are reliable.




                                         8
Hawkins’s testimony about the trace amounts of cocaine found in Appellant’s

blood should have been excluded.2

      I would hold that the trial court abused its discretion by allowing Hawkins to

testify that the GCMS testing showed trace amounts of cocaine in Appellant’s

blood that were below the .05 mg/L reportable cut-off set by DPS policy and

would conduct a harm analysis. See Hernandez v. State, 116 S.W.3d 26, 30

(Tex. Crim. App. 2003); Kelly, 824 S.W.2d at 573. Because the majority does

not, I respectfully dissent.


                                                   SUE WALKER
                                                   JUSTICE
PUBLISH

DELIVERED: March 21, 2013




      2
        The majority opinion notes the court of criminal appeals’ recent opinion of
Somers v. State, 368 S.W.3d 528 (Tex. Crim. App. 2012). See Maj. Op. @ 9. In
Somers, the court of criminal appeals held that the results of EMIT testing are
reliable scientific evidence and are admissible with or without confirmation by
GCMS testing. Id. at 545. Neither the reliability nor the admissibility of the EMIT
test is at issue here. Hawkins testified without objection to the results of the
EMIT test on Appellant’s blood; Appellant’s blood triggered a positive response
on the EMIT screening test in the cocaine and/or cocaine metabolites class. The
issue here is the reliability of Hawkins’s testimony that the GCMS test showed a
trace amount of cocaine in Appellant’s blood below .05mg/L that was not
included in her report of the GCMS analysis of Appellant’s blood because it was
below the DPS’s reportable GCMS cut-off. Thus, Somers does not dictate the
outcome here.


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