




02-10-444-CR





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-10-00444-CR
 
 



Stephanie
  Lynn Bekendam
 
 
 
 
v.
 
 
 
 
The
  State of Texas


§
 
§
 
§
 
§
 
§
 
§


From the 30th District Court
 
of
  Wichita County (50,166-A)
 
March
  21, 2013
 
Opinion
  by Justice Meier
Dissent
  by Justice Walker
 
(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.
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 hearing[2]
outside the presence of the jury 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 cocaine[3]
using the first test, “enzyme-multiplied immunoassay 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 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
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
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) (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 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.
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 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










 
 
 
 














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.[6]  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.
 
. . . .
 
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?
 
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?
 
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.
 
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.
 
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 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.  Hawkins’s testimony about the trace amounts of cocaine
found in Appellant’s blood should have been excluded.[7]
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
 
 
 




APPENDIX
A















[1]See Tex. Penal Code
Ann. § 49.09(b) (West Supp. 2012).


[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).


[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 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).


[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.


[6]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.


[7]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.


