             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. PD-1304-08



                                PHILLIP JASON HALL, Appellant

                                                    v.

                                      THE STATE OF TEXAS



                 ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                       FROM THE TENTH COURT OF APPEALS
                                JOHNSON COUNTY

      P RICE, J., filed a concurring opinion in which J OHNSON and H OLCOMB, JJ.,
joined.

                                   CONCURRING OPINION

        The court of appeals in this cause ultimately held that the trial court abused its discretion

in failing to grant the appellant’s motion to suppress.1 Along the way, the court of appeals held



        1

         Hall v. State, 264 S.W.3d 346, 350 (Tex. App.—Waco 2008) (“The [trial] court abused its
discretion by denying Hall’s pretrial suppression motion because the State failed to prove the reliability
of the LIDAR technology on which the officer relied to determine Hall was speeding. Accordingly,
we sustain Hall’s sole issue.”).
                                                                                          Hall — 2


that LIDAR technology is novel scientific evidence that is admissible only after a “full-blown”

gate-keeping hearing under Kelly v. State.2 Today this Court holds (as I understand it) that,

because the Texas Rules of Evidence do not apply to a hearing on a pre-trial motion to

suppress evidence, and because the requirement of a Kelly hearing is a product of Rule 702 of

the Rules of Evidence, it cannot be said—at least strictly speaking—that the Rules of Evidence

ever require a Kelly hearing, per se, at a hearing on a pre-trial motion to suppress; and that the

court of appeals erred to conclude otherwise. I agree with this very limited holding. Whether

some type of gate-keeping hearing must be held in the context of a pre-trial suppression hearing

to determine the admissibility of scientific evidence, and what the characteristics of such a

hearing ought to be are, of course, further questions that we need not resolve in this case today.

        The purpose of a Kelly hearing is to provide an in camera forum for the proponent of

novel scientific evidence to demonstrate that it is reliable enough to be admissible in a criminal

trial. (Incidently, because the purpose of a Kelly hearing is to determine the admissibility of

evidence, the Rules of Evidence do not apply in the Kelly hearing itself, even if it is conducted

mid-trial.3 )   But the appellant in this case never requested a hearing to determine the



        2

         824 S.W.2d 568 (Tex. Crim. App. 1992).
        3

        See Steven Goode, Olin Guy Wellborn III & M. Michael Sharlot, 2 T EXAS P RACTICE: G UIDE
TO THE R ULES OF E VIDENCE  § 702.7 (3d ed. 2002), at 75 & n.22 (“Because reliability determinations
are made under [T EXAS R ULES OF E VIDENCE] 104(a), the court may consider inadmissible evidence.”).
Thus, the Rules of Evidence do not govern the admissibility of evidence at a hearing to establish the
admissibility of evidence.
                                                                                              Hall — 3


admissibility of evidence that is the product of LIDAR technology,4 either at the pre-trial

suppression hearing or during his trial. He never argued that the State should have to establish

the reliability of LIDAR technology before evidence based upon that technology could be

admitted at the motion to suppress hearing. In fact, without lodging an objection of any kind,

the appellant allowed Officer Phariss to testify that he stopped the appellant because of the

LIDAR reading. By failing to object, the appellant failed to put the State, as proponent of the

novel scientific evidence, to whatever burden it may have (assuming it has any such burden

in a pre-trial hearing context, where the Rules of Evidence do not apply—I offer no opinion

on this question) to establish its reliability as a prerequisite to admissibility.5 Therefore, this

is not a case about the admissibility of novel scientific evidence at a pre-trial suppression

hearing. Indeed, because a first-tier appellate court may not reverse a conviction without

inquiring whether the purported error was properly preserved at trial,6 the court of appeals

could not have reversed (and, as I read its opinion, did not reverse) the appellant’s conviction


        4

        In his motion to suppress, the appellant asked the trial court to suppress the fruits of the stop
and subsequent search unless the State could prove that he was “stopped with probable
cause/reasonable suspicion.” While he alleged (paradoxically) that the State should have to prove
probable cause “by clear and convincing evidence,” and cited Kelly, he nowhere argued that evidence
with respect to LIDAR technology should be deemed inadmissible at the pre-trial hearing.
        5

         See Goode, Wellborn & Sharlot, supra, at 73 (“The party opposing the admission of an
expert’s testimony must timely object or risk waiving the ability to challenge the expert’s testimony
on appeal. Once an objection is made, the proponent of the testimony bears the burden of
demonstrating its reliability.”).
        6

        E.g., Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005).
                                                                                              Hall — 4


on the basis of a claim about the admissibility of LIDAR technology at the pre-trial suppression

hearing.

        Instead of challenging the admissibility of Phariss’s LIDAR-based testimony, the

appellant was really challenging the sufficiency of that testimony—sufficiency to establish

probable cause that he had been speeding, so as to justify his arrest.7 He argued that, without

evidence to establish the reliability of LIDAR technology or Phariss’s proficiency in properly

applying it in his case, the State did not adduce sufficient evidence to show that Phariss had

probable cause to stop him for speeding. This is different from the issues 1) whether LIDAR-

based testimony is admissible at a pre-trial suppression hearing, 2) whether Kelly should apply

to determine admissibility in that context, or 3) whether, in the absence of the applicability of

the Rules of Evidence, some functional equivalent to, or less-exacting version of, a Kelly

hearing ought nevertheless to be required, as a matter of decisional law, to determine

admissibility.

        It is true that, in addressing the sufficiency issue, the court of appeals alluded to the

Kelly criteria, and even “held” that, to be admissible, LIDAR technology must be established



        7

         It is true that, at one point in his brief on appeal, the appellant argued (somewhat inartfully)
that “[t]he [trial] court erred in allowing scientific testimony concerning the speed detector Lidar
equipment and the results of the Lidar speed on the appellant’s automobile in violation of Rule 702
Texas Rules of Evidence, Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992[.]” But, as already
noted, the appellant did not preserve such an error for appeal. In any event, the major thrust of his
argument was that the State failed to establish probable cause, not that it was erroneously allowed to
introduce objected-to evidence with a novel scientific basis at the suppression hearing.
                                                                                           Hall — 5


in a “full-blown” Kelly hearing.8 But it did so, it seems to me, only in order to make the point

that LIDAR constitutes a new and unproven (at least in the courts of Texas) technology, the

reliability of which must be demonstrated by the party with the burden of proof before its

relevance (much less its probative value to establish probable cause) may be assumed.

Ultimately the court of appeals simply agreed with the appellant that, absent testimony showing

what LIDAR technology is, what it purports to prove, how reliably it proves it, and whether

Phariss knew how to operate it properly and did so on the day in question, the State failed to

supply probable cause to believe the appellant was speeding.

       I agree with the court of appeals’s conclusion that the evidence did not establish

probable cause. Suppose Phariss had testified that he believed the appellant was speeding only

because a blue cube on Phariss’s dashboard had indicated so. Without knowing any more

about the blue cube, a rational fact finder (here, the trial court as arbiter of pre-trial suppression

issues) would have no way to conclude that Phariss’s belief was a reasonable one. Neither

common sense nor common experience informs the fact finder that a blue cube is capable of

accurately gauging the speed of an automobile. Without knowing anything about the empirical

track record of the blue cube, it cannot be assumed that Phariss’s reliance upon it was

reasonable. Perhaps there is some scientific principle involved, and the blue cube utilizes

technology based upon that scientific principle that, when properly applied, has been shown



       8

        Hall v. State, supra at 350.
                                                                                                 Hall — 6


empirically to measure car speed accurately. If that is so, but the courts of Texas have not yet

generally recognized it, then the party with the burden to show probable cause must present

at least some evidence (never mind the quantum, for now) to demonstrate it.9 But testimony

about nothing more than the blue cube itself, without more, would not demonstrate the

reasonableness of Phariss’s belief in relying upon it.

        I do not see how LIDAR technology is (at the present time, at least) any different than

my hypothetical blue cube. Common sense and experience tell us nothing about LIDAR, and

I am aware of no court in Texas (and the State cites none) that has recognized the technology.

It is up to the party with the burden of proof (here, the party who must establish the

reasonableness of Phariss’s belief that the appellant was speeding) to show that he had some

reasonable basis for believing that LIDAR technology, properly applied, can give him reliable

information about the speed of a car, and that he was, in fact, applying the technology properly

when he measured the appellant’s speed. In this case, the State presented evidence of what

Phariss believed and why he believed it, but it presented no evidence whatsoever to show the

reasonableness of Phariss’s reliance on LIDAR technology to support his belief. He might as

well have testified that he believed the appellant was speeding simply because a blue cube told


        9

         Cf. Hernandez v. State, 116 S.W.3d 26, 29 & n.4 (Tex. Crim. App. 2003) (courts may take
judicial notice of reliability of scientific evidence once it is recognized as reliable by “the pertinent
professional community and has been accepted in a sufficient number of trial courts” after adversarial
testing; “Trial courts are not required to re-invent the scientific wheel in every trial. However, some
trial court must actually examine and assess the reliability of the particular scientific wheel before other
courts may ride along behind.”).
                                                                                          Hall — 7


him so.

       We need not say anything in this case about how reliable the proponent of novel

scientific evidence must show it to be at a pre-trial suppression hearing in order to establish

either its admissibility at that hearing (since that is not an issue in this case) or its sufficiency

to demonstrate probable cause. Here, the State, as proponent of the evidence, made absolutely

no showing of reliability. Therefore, whatever standard we might ultimately articulate for how

reliable the proponent must show the novel scientific evidence to be before it alone can

establish probable cause, the State did not satisfy it in this case. For this reason, I would affirm

the judgment of the court of appeals.

       With these additional comments, I join the majority opinion.




Filed:         September 16, 2009
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